Fahmy v. Jay-Z

908 F.3d 383
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 31, 2018
DocketNo. 16-55213
StatusPublished
Cited by25 cases

This text of 908 F.3d 383 (Fahmy v. Jay-Z) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fahmy v. Jay-Z, 908 F.3d 383 (9th Cir. 2018).

Opinion

The Opinion filed on May 31, 2018, is amended as set out in the attached Amended Opinion.

With that amendment, the panel has voted to deny the petition for panel rehearing. Judge Bea and Judge Callahan voted to deny the petition for rehearing en banc and Judge Kelly so recommended. The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and rehearing en banc is therefore DENIED .

No further petitions for rehearing will be accepted in this case.

AMENDED OPINION

BEA, Circuit Judge:

Days before the turn of the new millennium, rapper Jay-Z released an album containing his soon-to-be hit single Big Pimpin' . The background music to that track used a sample from a 1957 arrangement by Egyptian composer Baligh Hamdy. Today, we are faced with the question whether the heir to Hamdy's copyright (Appellant Fahmy) may sue Jay-Z for infringement based solely on the fact that Egyptian law recognizes an inalienable "moral right" of the author to object to offensive uses of a copyrighted work. We hold that he cannot.

I

A

In 1957, Baligh Hamdy composed the music to the song Khosara for the Egyptian movie Fata Ahlami . The song quickly became popular in Egypt. In 1968, Hamdy agreed to transfer certain license and distribution rights to an Egyptian recording company, Sout el Phan.1 When Hamdy died in 1993, his heirs inherited whatever rights he retained in Khosara . Appellant Osama Ahmed Fahmy ("Fahmy") is one of these heirs.

*386In August 1995, Hamdy's heirs, including Fahmy, who acted as the heirs' representative, executed another agreement with Sout el Phan, confirming the continuing viability of the rights transferred through the 1968 agreement.2 In December 1995, Sout el Phan transferred certain of its exclusive rights to a company called EMI Music Arabia ("EMI"). This agreement transferred to EMI, among other things, "the sole and exclusive right to protect, publish and/or sub-publish songs" contained on records in the Sout el Phan catalog, including Khosara . After the December 1995 agreement, EMI possessed the rights, previously held by Sout el Phan, to license and distribute recordings of Khosara in every country but Egypt. Sout el Phan retained the rights to license and distribute in Egypt.

Appellees enter the picture a few years later. In 1999, rapper Shawn Carter (professionally known as, "Jay-Z") and music producer Timothy Mosley (professionally known as, "Timbaland") produced a hit song, Big Pimpin' , that used portions of Khosara as a background track to Jay-Z's rap lyrics.3 They thought the music was part of the public domain and did not obtain permission to use it. EMI disagreed. As a result, in late 2000, EMI asserted its rights to the music, and Mosley paid EMI $100,000 for the right to exploit Khosara in Big Pimpin' .

Fahmy became aware of Big Pimpin' in December 2000. As a result, he authorized a U.S.-based intellectual property attorney, David Braun, to investigate a copyright infringement claim against Jay-Z. According to Fahmy, an attorney at EMI told Braun that EMI had a valid license to exploit Khosara but refused to disclose the agreement to Braun. Braun eventually declined to represent the Hamdy heirs.

Around 2001, control of Sout el Phan's musical catalog passed to another Egyptian entity called Alam el Phan. In 2002, independent of the agreements previously mentioned, Fahmy, as representative of the Hamdy heirs, including himself, signed an agreement with the owner of Alam el Phan, Mohsen Mohammed Jaber. The agreement transferred to Jaber certain rights to Khosara . Exactly which rights were transferred in this 2002 Agreement4 is the central dispute in this lawsuit. The agreement, in relevant part, reads as follows:

I, Osama Ahmed Fahm[y] ... in person and in my capacity as the representative of the heirs of the late [Baligh Hamdy] 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 ] 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 *387Jaber 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 [Article 147 of the 2002 Egyptian Copyright Law5 ] for the pieces of music listed hereinafter in the Arab Republic of Egypt and the whole world [including Khosara], and the use includes all the usage means and methods whether those currently available or those that will be invented 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. ...
I [Appellant] did also fully assign to Mr. Mohsen Mohammad Jaber all our rights clarified in [the 1968 Agreement] between Sout El Phan Company and the musician [Baligh Hamdy], or any other contracts and/or rights pertaining to those pieces of music. As such, signing on this document is considered as a final quittance from any of our dues from Sout El Phan, and Mr. Mohsen Jaber, and his successor, has the right to request and receive any financial dues relevant to this music from any party ....

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908 F.3d 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fahmy-v-jay-z-ca9-2018.