Namdi’s heir, Fahmy, sued Jay-Z claiming that “Big Pimpin” was an unlawful derivative work, infringing both the moral and economic rights in Khosara, Khosara.
Moral rights protect an author’s personal or moral interests in a work, protecting “the presumed intimate bond between authors and their works.” Under Egyptian law they include “the right to prevent modification considered by the author as distortion or mutilation of the work” and are inalienable and perpetual, so Fahmy was the owner of them.
But according to Jay-Z’s Egyptian law expert, the moral rights claim arises under Egyptian law and the claim must therefore be asserted in Egypt:
Q: [If] somebody uses [your copyright] in a way that violates your moral rights under Article 143, what is your recourse? What do you do?
A: It’s not that he uses the right in a way that violates my moral rights. He uses the rights and I am not listed. I have the right to go into Egypt before an Egyptian court and ask it to enforce my — right to be recognized as the original author or I have the right to go in Egypt if I think that the new work mutilates my original work, I have the right to go and ask the court ant to — and to object before court the use of such right.
Q: To get an injunction of some sort?
(Emphasis in original.) So a US court is not the place for a claim under Egyptian law. And the United States doesn’t recognize moral rights in this type of work, so there was no cognizable claim for infringement of moral rights.
As to the economic rights, there was a 2002 agreement (after the alleged infringement started in 1999), not involving the chain of title from which Jay-Z obtained his license—so this isn’t a license defense, it’s a challenge to Fahmy’s standing.* Fahmy conceded that the 2002 agreement assigned of some rights, but not all of them. This is a translation of the agreement:
I, Osama Ahmed Fahm[y] [plaintiff] … in person and in my capacity as the representative of the heirs of the late [Baligh Hamdi] hereby assign to Mr. Mohsen Mohammad Jaber … and to whoever he selects, the right to print, publish and use the music of the songs stated in this statement [including Khosara, Khosara] on all currently known audio and/or visual of videos, performances, records, cassette tapes, and cartridges in addition to all the modern technological and digital means such as the internet, telephones, satellites, or any other means that may be invented in the future including musical re-segmentation and alteration methods while maintaining the original segment of the music. This authorization grants Mr. Mohsen Mohammad Jaber solely/or to whoever he selects, the right to publish and sell these songs using all the means available in all parts of the world. I do hereby approve, by signing this authorization to pledge not to dispose once again of this music, or republish, sell, or present them to any other individual, company, authority, or institution.
I do hereby further state that by signing this authorization and waiver of these pieces of music to Mr. Mohsen Mohammad Jaber, I would have authorized him solely and/or whoever he selects, fully, and irrevocably the right to use this music in whatever way he deems necessary. Mr. Mohsen Mohammad Jaber or his successors are solely the owners of the financial usage rights stated in the [Egyptian] Law. No. 82 FOR THE YEAR 2002, for the pieces of music listed hereinafter in the Arab Republic of Egypt and the whole world, and the use includes all the usage means and methods whether those currently available or those that will be inventedd [sic] in the future and whether it was audio, visual or audiovisual including the new digital and technology means during the whole legal protection period specified by the law….
Mr. Mohsen Mohammad Jaber and his successor become the sole publisher of the melodies of these songs in all the current publishing means and in any way he deems whether it was direct or indirect. Mr. Mohsen Mohammad Jaber also has the right to transfer all these rights or some of them or dispose them to another company or institution using any trademark he selects….
[Plaintiff] received the amount of 115,000 (only one hundred fifteen thousand Egyptian Pounds) for this waiver and declaration while maintaining our rights in respect of the public performance and mechanical printing.
And that looks like a pretty clear assignment to me. The court found that the statement that “Mr. Mohsen Mohammad Jaber or his successors are solely the owners of the financial usage rights stated in the [Egyptian] Law. No. 82 FOR THE YEAR 2002, for the pieces of music listed hereinafter” to be an assignment of all economic rights, including the right under Egyptian law to make “adaptations” (i.e., derivative works).
Fahmy’s arguments to the contrary all failed. As required by Egyptian law the agreement described an explicit and detailed indication of each right to be transferred, the extent and purpose of the transfer, and the duration and place of exploitation. The plaintiff argued that the rights transferred must be described specifically, but there is no comprehensive list of rights in Egyptian law, so where the intent is to transfer all rights “the most effective means, if not the only effective means, for a copyright owner to transfer ‘all’ of his economic rights is to state simply that he is transferring ‘all’ economic rights.”
Fahmy had retained “rights in respect of the public performance and mechanical printing,” but under Egyptian law this was the right to receive the royalties, not any retained ownership of the copyright. The U.S. has a similar system; artists can retain the right to receive a royalty, which makes them a “beneficial” owner of the copyright but without legal ownership. So Fahmy didn’t own the copyright and therefore did not have standing to bring a copyright infringement claim.
Prior post here.
Fahmy v. Jay-Z, No. 2:07-cv-05715-CAS(PJWx) (C.D. Cal. Oct. 21, 2015).
*What the court didn’t appear to consider is what happens under Egyptian law to the right to sue for past infringement when the copyright is assigned. Under US law, any claim for past infringement remains with the owner of the copyright at the time of the infringement unless it is expressly assigned. Hmmm.
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