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Moral rights case against Jay-Z thrown out once again

By | Published on Friday 1 June 2018


The Ninth Circuit appeals court in the US has knocked back attempts by the family of an Egyptian film composer to sue Jay-Z over a sample in his 2000 track ‘Big Pimpin’. Judges confirmed that the plaintiffs can’t enforce their moral rights under Egyptian copyright law in an American courtroom.

The moral rights dispute between the family of late Egyptian film composer Baligh Hamdi and Jay-Z has been rumbling on for years. The rapper and his collaborator on ‘Big Pimpin’ – producer Timbaland – were accused of infringing Hamdi’s rights by sampling a piece of his music in their 2000 release. But Timbaland’s people had licensed the sample from an EMI subsidiary, which had a relationship with an Egyptian company, which in turn had a relationship with Hamdi.

However, the composer’s family argued that neither EMI nor its Egyptian partner were empowered to license the sample, and even if they were, doing so for a track of this nature infringed Hamdi’s moral rights under Egyptian law. The moral rights claim centred on the content of the Jay-Z track, which Hamdi’s family said his music shouldn’t be associated with.

Moral rights give songwriters and composers certain rights over their work even if the actual copyright has been assigned to another party. This element of copyright law varies considerably from country to country, though the two most common moral rights for songwriters are the right to attribution and the right to block derogatory treatments of their work. It was the latter that the Hamdi family said had been infringed here.

The concept of moral rights is, however, somewhat alien to US copyright law, especially with regard to music. With that in mind, Jay-Z’s people immediately argued that the Hamdi family’s case was entirely about moral rights under Egyptian law and therefore couldn’t be pursued in an American court.

The judge hearing the original case nevertheless allowed the action to proceed, despite those arguments from the Jay-Z side, but then subsequently changed her mind after hearing testimony from Egyptian law experts. Which resulted in the case being dismissed in 2015.

The Hamdi family decided to appeal, stating in a new court filing last year: “Setting aside semantics and dicta (and accusations and invective), this case boils down to a rather unremarkable proposition: Plaintiff owns, under the law of the country of origin of his copyright (Egypt), the right to protect his copyright from fundamental changes, and the US Copyright Act recognises the right owned by plaintiff and expressly prohibits Americans from violating plaintiff’s right”.

Based on that argument, the Hamdi family said it should be allowed to pursue its infringement case in “the only court that would have the power to stop defendants’ extensive, continuing, unauthorised, and (yes) vulgar and unfortunate distortion of plaintiff’s work in America”.

The American appeals judges have basically concurred with the judge in the original case. They disagreed with the Hamdi family’s argument that moral rights in Egypt basically meant that the ‘adaptation control’ of the copyright couldn’t be assigned. On Hamdi’s separate moral right to block derogatory treatment, the appeal judges concluded that that couldn’t be enforced in their courtroom.

Referring to the family’s representative in the case – Hadmi’s nephew Osama Ahmed Fahmy – the judges concluded that “since our federal law does not accord protection of moral rights to American [music] copyright holders … neither does it recognise Fahmy’s claim to moral rights. That Fahmy retains moral rights in Egypt does him no good here”.

A legal rep for Jay-Z unsurprisingly welcomed the latest ruling in this dispute, reckoning it set an important precedent regarding the moral rights of foreign creators in America.

Attorney Christine Lepera told Law360: “This is a seminal decision from this circuit on moral rights, and provides an important road map regarding the distinction between moral rights which are not actionable in the United States, and the economic right in a copyright, which is”.