Fahmy v. Jay-Z
908 F.3d 383
9th Cir.2018Background
- Baligh Hamdy composed Khosara (1957). He assigned certain rights to Sout el Phan (1968) and heirs reaffirmed that in 1995; EMI acquired many exploitation rights (1995) outside Egypt.
- In 1999 Jay-Z/Timbaland used a sample of Khosara in Big Pimpin'; EMI later licensed Mosley for $100,000.
- In 2002 Fahmy (Hamdy heir) signed an Arabic agreement assigning to Mohsen Jaber "all" economic/financial usage rights worldwide, while reserving rights to "public performance and mechanical printing" royalties.
- Fahmy sued Jay-Z in 2007 alleging infringement of the exclusive right to prepare derivative works (17 U.S.C. §106(2)); district court limited damages to the three-year rolling window and later granted JMOL for lack of standing.
- Central disputes on appeal: whether under Egyptian law the right to prohibit adaptations is an inalienable moral right; whether the 2002 Agreement validly conveyed adaptation rights under Egyptian law; and whether Fahmy’s reserved royalty rights make him a beneficial owner with standing to sue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Egyptian moral-rights doctrine makes the right to prohibit derivative works inalienable | Fahmy: Egyptian moral rights include the right to prohibit "distortions" and thus adaptation prohibition is inalienable | Jay‑Z: Adaptation is an economic right under Egyptian law and can be transferred | Held: Adaptation is an economic right under Article 147 and transferable; Egyptian moral rights are not enforceable here and, even in Egypt, only give injunctive relief conditioned on compensation |
| Whether the 2002 Agreement unambiguously transferred adaptation/economic rights under Egyptian law (Article 149) | Fahmy: Agreement fails to "separately, clearly, and unequivocally" identify transfer of right to alter future versions | Jay‑Z: Agreement expressly assigns "all" economic/financial usage rights and refers to Article 147, satisfying Article 149's writing, scope, duration, and territory requirements | Held: Agreement unambiguously conveyed economic adaptation rights worldwide for the statutory protection period; referring to Article 147 suffices to transfer "all" economic rights |
| Whether reservation of royalties for public performance and mechanical printing makes Fahmy a beneficial owner of the derivative-right he sues over | Fahmy: Retained royalty rights make him a beneficial owner entitled to sue | Jay‑Z: Reserved royalties relate to §106(1) and §106(4/6), not the §106(2) derivative right | Held: Fahmy retained royalties only for public performance and mechanical reproduction, not the §106(2) derivative right; he is not the legal or beneficial owner of the asserted right and lacks standing |
| Enforceability of foreign moral-rights claims in U.S. copyright suits | Fahmy: Berne/national-treatment requires recognition of Egyptian moral rights here | Jay‑Z: U.S. law does not recognize these moral rights for non-visual works; Berne does not require greater protection than domestic law | Held: Berne’s national-treatment principle does not compel recognition beyond U.S. law; U.S. law largely lacks moral-rights protection for non-visual art, so Egyptian moral rights do not provide relief here |
Key Cases Cited
- Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (Sup. Ct. 2014) (laches cannot bar copyright claims within the statutory limitations period)
- Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (U.S. copyright law generally does not recognize broad moral rights outside a limited class of visual art)
- Golan v. Holder, 565 U.S. 302 (Sup. Ct. 2012) (discussing international copyright relations and the Berne Convention)
- DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978 (9th Cir. 2017) (example of beneficial-owner concept for copyright standing)
- Subafilms, Ltd. v. MGM-Pathe Commc'ns Co., 24 F.3d 1088 (9th Cir. 1994) (applying principle that the law of the place of infringement governs treatment of foreign copyrights)