• Moral Rights versus Economic Rights

    by  • June 7, 2011 • copyright, moral rights

    Fahmy v. Jay-Z is a cautionary story about music sampling.  Not the usual one, about to what extent sampling may be a fair use or may require a license, but rather what kind of rights sampling implicates.

    Fahmy was the successor in interest to the copyright in the composition and music recording of an Egyptian piece called “Khosara, Khosara.”  The allegation was that Jay-Z infringed the copyright by sampling it in his piece “Big Pimpin’.”  Fahmy alleged that, under Egyptian law, the right to creative derivative works is a moral right, not an economic right, that moral rights are inalienable, and therefore the license upon which Jay-Z relied could not include the right to sample.

    Contrary to Fahmy’s expert’s opinion that the financial right includes only the right to perform, reproduce and distribute without alteration, Jay-Z’s expert opined that financial rights under Egyptian law include the right to make adaptations and translations.  On summary judgment the court sided with Jay-Z, holding that a transferable adaptation right exists independently of inalienable moral rights under Egyptian law.

    Next was the question whether the license allowed Jay-Z to make a derivative work, including both whether the license encompassed the musical composition copyright or only the sound recording copyright and whether the license included the right to make derivative works. There were a number of documents in the chain of title for the 1957 work, so unsurprisingly that winds up as a question for the jury.

    Fahmy v. Jay-Z, No. CV 07-5715 (C.D. Cal. May 2, 2011).

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