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Plaintiff may sue Jay-Z using Egyptian legal theory

The Ninth Circuit Court of Appeals has just heard an appeal by an Egyptian man who wants to protect his uncle's legacy. There's no doubt that Jay-Z (Shawn Carter) and music producer Timbaland (Timothy Mosley) sampled Baligh Hamdi's "Khosara Khosara" in the hit "Big Pimpin'."

Although little known in the U.S., Baligh Hamdi, now deceased, was a famed composer in Egypt. Jay-Z and Timbaland say they found "Khosara Khosara" ("What a Loss, What a Loss") on a CD and paid $100,000 to sample four measures of Arabic flute from the song to use as a hook for "Big Pimpin'."

Osama Fahmy, Hamdi's nephew, claims the music was used without his permission. Moreover, he says Jay-Z and Timbaland violated the integrity of Hamdi's work by using the riff because the lyrics to "Big Pimpin'" allegedly glorify misogyny and drug trafficking.

In 2015, a federal trial court ruled that Fahmy lacked standing to bring his lawsuit because he had transferred his economic rights to the music under Egyptian law. On appeal, his lawyer argued that Egyptian law still allows Fahmy to assert "moral rights" and challenge the re-use or alterations of the song.

Now, the Ninth Circuit is deliberating about whether Egyptian law has any application in an American courtroom.

Foreign laws cannot be directly applied in the U.S., but they can be used as evidence in U.S. disputes. Moreover, U.S. treaties with allies often involve a concept called "comity," where each government agrees to give a certain amount of deference to the other's laws and rules. Comity generally does not outweigh American statues or direct legal precedents, but comity may encourage courts to try to align foreign laws with similar laws in the U.S. That appears to be the case here, as the discussion indicates.

Fahmy's lawyer urged the appellate court to view the "moral rights" recognized in Egypt as analogous to authors' rights in the U.S. American courts have recognized the author's exclusive right to make changes to their work or to create derivative works, he said. The differences between U.S. and Egyptian law in this regard are mere semantics.

"Both the United States and the country of Egypt give authors alone the right to make fundamental changes to their copyrighted works," the attorney said. "The Hamdi family retained the right to prevent any fundamental modification to the work 'Khosara Khosara.'"

Jay-Z's lawyer argued that the rights are fundamentally different and that Fahmy is trying to import Egyptian law into the United States.

"You can't transfer the personal right of integrity under Egyptian law, and the remedies are under Egyptian law, not U.S. law," she said. In other words, Fahmy should re-file his lawsuit in Egypt.

The Ninth Circuit could simply suggest that as a remedy, but it's possible they will consider the overall fairness of the remedy. After all, the alleged copyright infringement occurred in the U.S., not Egypt.

Fahmy's attorney argued that kicking the dispute back to Egypt deprives Fahmy of any real remedy.

"Go to your home country and enforce your rights under your own law but if there's no infringement there, then you're out of luck," he said. "That can't be the message that this court is sending to foreign authors."

"We are enforcing a right under United States law, we're suing for infringement in this country. The only reason why Egyptian law matters is it dictates the scope of rights that we own," he added.

The three-judge panel of the Ninth Circuit took the case under advisement. They did not suggest a date for any expected ruling.

Whether you are a copyright holder or are accused of misusing a copyright, you should know that foreign law may well enter into disputes that may arise. If you become involved in a dispute involving foreign or international copyright law, it's essential for you to work with a highly experienced intellectual property lawyer.

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