In 2007, the nephew of Egyptian composer Baligh Hamdy sued Jay Z and Timbaland, claiming that their 1999 hit “Big Pimpin'” sampled Hamdy’s 1957 song “Khosara Khosara” without permission. The case finally went to trial last year, but before the jury could deliberate, a judge dismissed the suit with prejudice, ruling that Hamdy’s heir didn’t have the right to pursue the claim.
You’d think that’d be the end of it, but nope! Osama Fahmy, Hamdy’s nephew, appealed the ruling in August, and in a 64-page opening brief, his attorney Keith Wesley argued that the court was wrong to rule that Fahmy didn’t have the standing to sue. According to Wesley, Fahmy licensed “Khosara Khosara” but reserved the right to approve derivative works through Egyptian law instead of a standard contractual provision. In court, he argued that Jay Z and Timbaland violated Hamdi’s “moral rights” by using elements “Khosara Khosara” in a song celebrating a promiscuous lifestyle, and in the appeal, Wesley explained the Egyptian concept of moral rights with the use of a particularly tone-deaf analogy. If the “famous two-note ostinato from Jaws” were used in a recruitment video for the Ku Klux Klan and John Williams retained the right to approve derivative works, he said, Williams would have the right to sue. And by the same logic, Wesley argued, so does Fahmy.
According to The Hollywood Reporter, Jay Z and Timbaland aren’t too happy with that analogy, or with Fahmy in general. “His comparison of an expressive work of fiction created by pioneering African-American artists and performed in a distinctly African-American musical art form to a non-fiction promotional vehicle for a white supremacist group that ‘imposed a veritable reign of terror’ on newly freed African-Americans in the post-Reconstruction South for decades — using violence such as cross-burning, lynching, arson, and whippings — demonstrates a high degree of racial insensitivity that crosses the line of responsible advocacy,” their attorneys stated in a reply.
Furthermore, attorneys for Jay and Timbo argue that Fahmy’s interpretation of the law would open US courts “to a flood of moral rights claims not recognized in this country.” As they explain, “Any Egyptian moral right Plaintiff retained is not enforceable in the United States and did not limit or modify Plaintiff’s complete worldwide transfer under the 2002 Agreement of all exclusive economic rights in Khosara. In arguing otherwise, Plaintiff misrepresents the law and attempts to eviscerate the fundamental distinction between moral rights (not enforceable in the U.S.) and freely transferable economic rights, which include the right to create and prevent derivative works.”