At the recording session, Timbaland grabbed a CD that contained Middle Eastern music he believed to be in the public domain. He found a particularly distinctive Egyptian composition — the kind of song one might expect to be played for a belly dance. Timbaland focused on a particular measure of this song with an amazing flute melody and looped it. Jay Z’s rap (“You know I, thug ’em, f— ’em, love ’em, leave ’em”) came on top. And so “Big Pimpin” was created.Rolling Stone magazine has since called it one of the 500 greatest songs of all time.
When Jay Z’s hit came out, a foreign subsidiary of EMI identified the sample as coming from the Baligh Hamdy composition “Khosara, Khosara” from the 1960 Egyptian film Fata ahlami. EMI claimed rights stemming from a deal with an Egyptian outfit that had made its own agreement with Hamdy’s heirs. Timbaland then paid $100,000 to EMI for rights to use the sample, and that money was supposed to end any dispute. Except it didn’t.
Instead, what’s resulted is one of the longest-running active lawsuits in America — not just in entertainment. And it finally is scheduled to go to trial on October 13. Both Timbaland and Jay Z will testify, according to court filings submitted on Monday.
The lawsuit, filed in 2007 in California federal court, comes from Osama Ahmed Fahmy, the nephew of Hamdy, who is targeting Jay Z, Timbaland, EMI, Universal Music, Paramount Pictures (over a Jay Z documentary), MTV (over a Jay Z special) and others. After all, “Big Pimpin” has been exploited by many.
If this case was as simple as determining whether “Khosara, Khosara” was illicitly copied, and the damage therein, it would be interesting enough. Here, for example, are some of the exhibits attached to a deposition that Jay Z gave in the case: A Live Nation touring business plan, royalty statements for Jay Z and his agreement with Roc-A-Fella Records.
The quirks of the case add to the intrigue.
The Jay Z side believes that it has properly licensed “Khosara, Khosara,” and even if not, it’s not for Fahmy to challenge. Soon after Timbaland made his $100,000 deal, Fahmy reached agreement with the Egyptian outfit that had given EMI rights. According to court documents, the Hamdy heirs got a “lump-sum buyout” in exchange for assigning song rights. “Pursuant to the 2002 Agreement, Plaintiff gave up exclusive control of all rights in Khosara that have application in the United States, and therefore he has no standing to bring any claims,” states defendants’ memorandum on Monday.
Fahmy’s lawyers have a different story — and it’s one that leans on the moral rights of authors in Egyptian law and how this impacts licensing contracts.
“The evidence will show that the defendants did not enter into valid agreements that ‘expressly and in detail’ — including indicating the range, purpose, and period and place of exploitation — convey the right to use Khosara, Khosara inBig Pimpin‘,” states plaintiff’s memorandum. “The evidence will also show that the defendants did not obtain the consent of the author or his heirs to introduce modifications in or additions to Khosara Khosara; therefore, any license to economically exploit Khosara Khosara in Big Pimpin‘ would be null and void.”
The defendants respond, “Throughout the course of this litigation, Plaintiff has consistently tried to make this a case about so-called ‘moral rights,’ complaining for example that under Egyptian law, authors and their heirs can always refuse to permit use of a composition in manners deemed to be ‘objectionable,’ regardless of whether they previously gave up all of their economic rights in connection therewith. This Court, however, already has properly determined that moral rights have no application in the United States, and cannot support Plaintiff’s copyright infringement claims.’
Which deals are valid and which ones are not could be the starting point in figuring out the legitimacy of “Big Pimpin.” Other issues that could be tested include figuring out what expression in “Khosara, Khosara” is original enough to be copyrighted, whether rights were forfeited by general publication, whether the use of a sample was de minimus copying or fair use, whether there was any willfulness in the copying, and whether Fahmy waited too long to make a challenge over “Big Pimpin.” In the two months before trial, a judge could potentially narrow what is to be tried before a jury.
Fahmy’s lawyers will be calling to the witness stand Judith Finell, the same musicologist who testified during the “Blurred Lines” case on behalf of the Marvin Gaye family. They’ll also be presenting the testimony of Dr. Patrick Kennedy, an economist who has reviewed all of the accounting statements and digital download data and will summarize the defendants’ revenue and profit attributable to their exploitation of “Big Pimpin.” They’ll also be calling to the witness stand Dr. Michael Kamins, a marketing expert who has conducted a survey of those who have seen Jay Z in concert in an effort to determine if fans making ticket purchases did so with expectation of seeing “Big Pimpin.” And then there’s Sam Rubin, an entertainment reporter who will be called to offer his opinion on the significance of the song to Jay Z’s career.
The defendants are ridiculing the lawsuit’s reach. “The notion that people buy concert tickets to Mr. Carter’s concerts to hear one song—never mind an instrumental sample contained in one song that may or may not be played—is patently absurd,” they say in a brief.
The trial will feature many top entertainment lawyers including Peter Ross, Keith Wesley and Jonathan Gottfried on behalf of Fahmy. David Steinberg, Christine Lepera, Russell Frackman, Bradley Mullins, Daniel Rozansky and Andrew Bart will be representing the defendants.