“The Blueprint” for an Infringement?

A recently-filed case in a California federal court has Jay-Z and his promoters at Live Nation wondering whether they’ll continue to reap the benefits of the 1999 hit single Big Pimpin’ or whether they’ll be “spending G’s” to clean up a potential infringement posed by a sample looped throughout one of S. Carter’s most famous tracks.  Last week, an Egyptian plaintiff named Osama Ahmed Fahmy sued Live Nation Entertainment, Inc., seeking unspecified actual damages and costs, alleging Live Nation’s continued “use” of Big Pimpin’ in the promotion of Jay-Z concerts all over the world constitutes infringement (direct, contributory and vicarious) of Plaintiff’s copyright in the original musical composition of the Egyptian song Khosara Khosara.  We’ll get to more about the case in a moment.  First, though, a “life and times” of the allegedly-infringed work is in order.

According to the Complaint, Khosara Khosara, a recognizable piece to even the most untrained ear, was composed in 1957 by an influential Egyptian composer, Baligh Hamdy, for use in the Egyptian film Fatha Ahlami.  It was legally and properly registered under Egyptian copyright law in 1960.  The composition was apparently recorded by the vocalist Abdel Halim Hafez for the movie (with conducting and arrangement by Hamdy), and Hamdy apparently retained full copyright ownership over the musical composition (and the Hafez sound recording, as well) until his death in 1993.  At that point, under Egyptian copyright law, the legal rights in the copyrights then passed to his children.  According to Fahmy (who, while not one of Hamdy’s children, has owned the copyright jointly with Hamdy’s surviving children since 2002), in or about 1995, the owners of the copyrights licensed the right to “mechanically reproduce” the Hamdy version of Khosara Khosara (via the Hafez sound recording), without changes or alterations, on to records and cassettes.  Shortly thereafter, in 1997, the Hafez sound recording of Hamdy’s Khosara Khosara appeared in the United States on an album titled “The Movie Collection,” which contained original movie soundtracks sung by Hafez.  Still with me?

Then, sometime in 1999, a producer by the name of Timothy Mosely, who Insider readers may also know as Timbaland, allegedly “came into possession of a recording of Khosara Khosara” (presumably the Hafez sound recording), which he allegedly played for Sean Carter.  Insider readers will note that Mr. Carter is better known to the world as the great Jay-Z.  The rest, as they say, is history.  Jay-Z recorded and released Big Pimpin’, which Fahmy alleges “consists of (a) a significant portion of the Khosara Khosara composition, (b) electronic beats, and (c) Mr. Carter’s rap”, on his album Volume III: Life and Times of S. Carter, and it became one of Jay’s biggest and most recognizable hits.  Fahmy alleges this is due, in no small part, to the fact that Khosara Khosara “is looped throughout…[and] gives Big Pimpin’ its unique identity.”

So, it’s no wonder that Fahmy is suing Jay-Z for infringement here.  Wait, what’s that?  Oh.  Fahmy is NOT suing Jay-Z for infringement here — not this time, at least.  Indeed, Fahmy appears to be taking a novel approach in attempting to vindicate his IP rights by suing Live Nation which is, of course, perhaps the single largest promoter and organizer of concerts and tours for recording artists in the world.  At first glance, it doesn’t necessarily make sense how Live Nation would have any sort of liability for the infringement of the Khosara Khosara composition (or recording) in question.  However, Fahmy alleges that, since 2008, when Live Nation allegedly entered into an agreement with Jay-Z to “sponsor, promote, and/or facilitate” his concerts and tours, Jay-Z has performed Big Pimpin’ at every single one of his concerts, in one form or another.  He alleges that Live Nation owned or had exclusive booking rights to the venues where Jay publicly performed Big Pimpin’ and that the track has been used in concert reviews and previews as one of the songs Jay would be performing or had performed.  As a result of the “infringement” in Jay Z’s public performances of Fahmy’s copyrighted work, he says that Live Nation has infringed the work and “profited substantially” therefrom, in both ticket sales and merchandising at the events, and among many “other revenue streams,” as well.  As a result, Fahmy is seeking unspecified damages for copyright infringement, both direct and indirect, from Live Nation.

The Insider should note that it certainly seems like Plaintiff may have 99 Problems proving his case against Live Nation.  Putting aside the fact that it appears from the Complaint that he may not necessarily be the rightful owner of the Hafez sound recording that was sampled (and his vague pleading on the subject is evidence of same), Fahmy has sat on this particular alleged litigation with Live Nation, knowing Jay-Z was performing his song night after night, for at least seven years without filing suit.  This, alone, may constitute a waiver or constructive waiver of his rights with respect to the alleged “infringement”.  Further, it’s also pretty clear that Live Nation wasn’t the direct infringer here.  While Live Nation put on the concerts, it was Jay-Z, likely an independent contractor, who publicly performed the infringing work time and again, and so it was he, and not Live Nation, who would have violated the exclusive public performance right in the work (which, while not registered in the United States, allegedly is entitled to protection under our Copyright Act via the Berne Convention and other treaties).  And, because Jay-Z is almost certainly an independent contractor, and not a Live Nation employee, there could be no respondeat superior argument for direct infringement here, either.  Lastly, while it’s entirely possible that Live Nation could be an indirect infringer, a defendant infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.  There’s no allegation and/or evidence of Live Nation’s “intent” to induce the infringement of Khosara Khosara, nor is there an allegation of how they “declined” to stop the alleged infringement during Jay-Z concerts after being alerted of same — this of course assumes, arguendo, that Live Nation had ever been alerted of the alleged infringement in the first place, an allegation that exists nowhere in the Complaint.  Fahmy has his work cut out for himself.

Yet, the question remains: why wouldn’t he simply sue the actual performer, Jay-Z, for infringement?  Well, as the Hollywood Reporter notes, this isn’t Fahmy’s first foray into claiming infringement of “his” work: “Few legal disputes in the entertainment industry are older than Osama Ahmed Fahmy’s war over ‘Big Pimpin’.’  Jay-Z himself as well as MTV, Paramount Pictures, Warner Music and others are still involved in an 8-year-old case examining allegations that the song’s unmistakably catchy hook illicitly derives from Khosara, Khosara…”  So, while still embroiled in that litigation which has, to date, proven to be unsuccessful, it appears that he’s attempting to fight the same suit on yet another front.  Or, as Jay-Z might say, Fahmy is On to the Next One.  And while you certainly Can’t Knock the Hustle of Fahmy continuing to litigate cases based on Khosara Khosara’s copyright, in the end, the Insider believes that this will likely just result in a dismissal and end up making Fahmy, the purported owner of the Song[,] Cry.

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