Osama Ahmed Fahmy claims that Timothy Mosley (better known as ‘Timbaland’), an American music producer and rap artist, did not acquire a license in perpetuity for the four notes of Khosara that was used to compose Jay-Z’s Big Pimpin’. Khosara was written by late Egyptian composer Baligh Hamdy. Fahey, who claims to be an heir of Hamdy, asserted that Timbaland’s use of four notes in Khosara infringed upon his copyright because a licensee EMI Arabia could not sub-license this license without his permission. Fahmy also filed motion for summary judgment against the rappers, which was denied. Federal Judge Christina Snyder ruled that other genuine issues of material facts existed.
Fahmy’s claim was grounded upon a moral rights law, only recognized in Egypt, but drew an analogous line to sub-licensing rights in America. A Rule 11 motion would have been appropriate here. Respondent’s lawyer could have moved for a judgment on the pleadings, given the pleaded inapplicable law. Theoretically, these procedural rules would have dismantled Fahmy’s claims, undermined his credibility, if not dismissed the claims altogether, given Fahmy based his claim on Egyptian Law.
Allegedly in December 1995, Sout el Phan, an Egyptian recording company, entered into a licensing agreement with EMI Music Arabia (Defendants’ Licensor) granting EMI sole and exclusive right to protect, publish, and or sub-publish the song Khosara. In 2001, Timbaland allegedly contracted with EMI Arabia to acquire rights to use a Khosara in perpetuity against the rest of the world, excluding Egypt. Timbaland paid $100,000 (a small house) for consideration. Both EMI Arabia and Sout el Phan shared in the proceeds from the licensing of these rights. From these facts, Sout el Phan resembles an undisclosed principal whose existence was not known to Timbaland at the time this contract was formed. Here, agency law and federal statutes are both at play.
Alternatively, Sout el Phan and EMI Arabia would be liable to Timbaland and other respondents for damages related to a fraudulent contract, should respondents lose.
However, from an objective reading, Sout el Phan had the authority to license and sub-license, given the timeline and details.
As written in groove with current trial dates, the court ruled in favor of Jay-Z, Timbaland, and other respondents, because Plaintiff lacked standing. This criticism was just seconds late of that ruling.
Ironically enough, Khosara is said to be an Egyptian love ballad that was converted into Jay-Z’s Big Pimpin’, a veneration of all things that are perverse and inconsistent with the law.
Defs.’ Joint Mem. of Contentions of Fact of Law (Aug. 10, 2015) WL 5968225 (C.D.Cal.) (Trial Filing).
Plaintiff’s Motion for Summary Judgment on Defendant’s License Affirmative Defense: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/PMSJ.pdf
Youtube Video: https://www.youtube.com/watch?v=49CGZgWdBNs and can be heard on iTunes