Jay Z Likely Headed to Trial in 'Big Pimpin' Sampling Lawsuit
A California federal judge on Monday rejected Osama Ahmed Fahmy's bid for early judgment of his copyright claims against the rapper.
Now in its eighth year, the long-running litigation over whether Jay Z rightfully sampled an Egyptian tune in his hit single "Big Pimpin'" is getting closer to resolution. With the trial scheduled for Oct. 13, the judge on Monday indicated she’d likely deny Osama Ahmed Fahmy's motion for summary judgment against the rapper.
Fahmy’s lawsuit centers on the composition "Khosara, Khosara" from the 1960 Egyptian film Fata ahlami, which Jay Z and Timbaland (who is a co-defendant) turned into the unmistakable hook of the rapper’s 2000 single. Fahmy claims he's an heir of “Khosara Khosara” composer Baligh Hamdy and sued the rapper for copyright infringement, also naming Paramount Pictures, Warner Music, UMG and MTV among the defendants.
Years ago, the judge permitted Fahmy to argue that his "moral rights" were violated via the original composition having been “mutilated.” (Moral rights, recognized in Egypt, differ from the “economic” rights to reproduce the recording.)
In a February motion for summary judgment, Fahmy went at the dispute from a different angle. “This Court previously ruled that a genuine issue of disputed fact exists as to whether the agreements upon which Defendants rely grant them the right to make a derivative work from ‘Khosara Khosara,' " reads the motion. “The jury need not decide that issue, however." Read the full motion.
Fahmy contends the record company that licensed “Khosara Khosara” to Timbaland never had the right to license the song in the first place.
Timbaland made a deal with EMI Arabia, which had a deal with the Egyptian record label Sout el Phan. Fahmy had licensed "Khosara Khosara" to Sout el Phan. He claims EMI Arabia's license to the song expired in 2007. But furthermore, he claims that while he permitted Sout el Phan to license the song to companies like EMI Arabia, the EMI affiliate couldn't itself license the song without his permission.
“That’s the real problem here," argued Fahmy's attorney, Keith Wesley of Browne George Ross, in court Monday. "Sout el Phan said, 'EMI Arabia, you can use it, but you can't go out and give away rights to someone else. I don’t have authority to do that, and the copyright owner hasn’t given me rights to do that.' "
The record company defendants’ lawyer, David Steinberg of Mitchell Silberberg & Knupp, responded that Fahmy did give consent for EMI to further license the composition. "He had the chance to say, 'I don't want to allow sublicenses.' The whole notion of whether he consented to them is frankly undisputed," said Steinberg. “At very least there’s an issue of fact," he added.
In her tentative ruling, federal judge Christina Snyder agreed the terms of the licensing agreements present triable issues. In the courtroom, she pointed out the lawsuit's extraordinary lifespan. "I think this case really has to head toward some form of resolution sooner rather than later," she said. The attorneys noted that a settlement conference went nowhere. "I think the only answer is to march toward trial," said Wesley.
“We’re hopeful that the court reexamines the tentative in light of our comments at the hearing, and otherwise we’re looking forward to trying the case in October,” he told The Hollywood Reporter following the hearing.
The defendants' attorneys couldn’t immediately be reached for comment.
This article was originally published by The Hollywood Reporter.