Argued
and Submitted December 8, 2017 Pasadena, California
Appeal
from the United States District Court No.
2:07-cv-05715-CAS-PJW for the Central District of California
Christina A. Snyder, District Judge, Presiding
Keith
J. Wesley (argued), Corbin K. Barthold, and Peter W. Ross,
Browne George Ross LLP, Los Angeles, California, for
Plaintiff-Appellant.
Christine Lepera (argued), Mitchell Silberberg & Knupp
LLP, New York, New York; David A. Steinberg, Mitchell
Silberberg & Knupp LLP, Los Angeles, California; Andrew
H. Bart, Jenner & Block LLP, New York, New York; for
Defendants-Appellees.
Before: Carlos T. Bea, Consuelo M. Callahan, and Paul R.
Kelly, [*]
Circuit Judges.
AMENDED
OPINION
SUMMARY
[**]
Copyright
The
panel affirmed the district court's grant of judgment as
a matter of law in favor of rapper Jay-Z and other defendants
on copyright infringement claims brought by the heir to
Egyptian composer Baligh Hamdy's copyright in a 1957
arrangement of the song Khosara.
Jay-Z
used a sample from the arrangement in the background music to
his hit single Big Pimpin'.
The
district court held that the heir, Osama Ahmed Fahmy, lacked
standing to bring the copyright claims. First, the district
court held that Egyptian law recognizes a transferable right
of "adaptation," such that when Fahmy transferred
"all" of his economic rights to Mohsen Mohammed
Jaber in a 2002 agreement, the transfer included the right to
create derivative works adapted from Khosara. The
district court concluded that the right of adaptation is an
economic right under Egyptian law, not an inalienable moral
right. Second, the district court held that the conveyance of
rights contained in the 2002 agreement complied with the
requirements of Article 149, the Egyptian law governing the
transfer of economic rights. Accordingly, the 2002 agreement
successfully conveyed a right of adaptation of
Khosara to Jaber. Third, a reservation of rights
found at the end of the 2002 agreement referred to the right
to receive royalties, and thus did not confer standing on
Fahmy to bring a claim of copyright infringement.
Affirming,
the panel concluded (1) that Egyptian law recognizes a
transferable economic right to prepare derivative works; (2)
that the moral rights Fahmy retained by operation of Egyptian
law were not enforceable in U.S. federal court; and (3) that,
even if they were, Fahmy had not complied with the
compensation requirement of Egyptian law, which did not
provide for his requested money damages, and which provided
for only injunctive relief from an Egyptian court. The panel
held that the district court properly interpreted the 2002
agreement as conveying to Jaber the economic right to create
derivative works. In addition, the fact that Fahmy retained
the right to royalties did not give him standing to sue for
copyright infringement.
OPINION
BEA,
CIRCUIT JUDGE.
Days
before the turn of the new millennium, rapper Jay-Z released
an album containing his soon-to-be hit single Big
Pimpin'. The background music to that track used a
sample from a 1957 arrangement by Egyptian composer Baligh
Hamdy. Today, we are faced with the question whether the heir
to Hamdy's copyright (Appellant Fahmy) may sue Jay-Z for
infringement based solely on the fact that Egyptian law
recognizes an inalienable "moral right" of the
author to object to offensive uses of a copyrighted work. We
hold that he cannot.
I
A
In
1957, Baligh Hamdy composed the music to the song
Khosara for the Egyptian movie Fata Ahlami.
The song quickly became popular in Egypt. In 1968, Hamdy
agreed to transfer certain license and distribution rights to
an Egyptian recording company, Sout el Phan.[1] When Hamdy died
in 1993, his heirs inherited whatever rights he retained in
Khosara. Appellant Osama Ahmed Fahmy
("Fahmy") is one of these heirs.
In
August 1995, Hamdy's heirs, including Fahmy, who acted as
the heirs' representative, executed another agreement
with Sout el Phan, confirming the continuing viability of the
rights transferred through the 1968 agreement.[2] In December 1995,
Sout el Phan transferred certain of its exclusive rights to a
company called EMI Music Arabia ("EMI"). This
agreement transferred to EMI, among other things, "the
sole and exclusive right to protect, publish and/or
sub-publish songs" contained on records in the Sout el
Phan catalog, including Khosara. After the December
1995 agreement, EMI possessed the rights, previously held by
Sout el Phan, to license and distribute recordings of
Khosara in every country but Egypt. Sout el Phan
retained the rights to license and distribute in Egypt.
Appellees
enter the picture a few years later. In 1999, rapper Shawn
Carter (professionally known as, "Jay-Z") and music
producer Timothy Mosley (professionally known as,
"Timbaland") produced a hit song, Big
Pimpin', that used portions of Khosara as a
background track to Jay-Z's rap lyrics.[3] They thought the
music was part of the public domain and did not obtain
permission to use it. EMI disagreed. As a result, in late
2000, EMI asserted its rights to the music, and Mosley paid
EMI $100, 000 for the right to exploit Khosara in
Big Pimpin'.
Fahmy
became aware of Big Pimpin' in December 2000. As
a result, he authorized a U.S.-based intellectual property
attorney, David Braun, to investigate a copyright
infringement claim against Jay-Z. According to Fahmy, an
attorney at EMI told Braun that EMI had a valid license to
exploit Khosara but refused to disclose the
agreement to Braun. Braun eventually declined to represent
the Hamdy heirs.
Around
2001, control of Sout el Phan's musical catalog passed to
another Egyptian entity called Alam el Phan. In 2002,
independent of the agreements previously mentioned, Fahmy, as
representative of the Hamdy heirs, including himself, signed
an agreement with the owner of Alam el Phan, Mohsen Mohammed
Jaber. The agreement transferred to Jaber certain rights to
Khosara. Exactly which rights were transferred in
this 2002 Agreement[4] is the central dispute in this lawsuit.
The agreement, in relevant part, reads as follows:
I, Osama Ahmed Fahm[y] . . . in person and in my capacity as
the representative of the heirs of the late [Baligh Hamdy]
hereby assign to Mr. Mohsen Mohammad Jaber . . . and to
whoever he selects, the right to print, publish and use the
music of the songs stated in this statement [including
Khosara] on all currently known audio
and/or visual of videos, performances, records, cassette
tapes, and cartridges in addition to all the modern
technological and digital means such as the internet,
telephones, satellites, or any other means that may be
invented in the future including musical re-segmentation
and alteration methods while maintaining the original
segment of the music. This authorization grants Mr.
Mohsen Mohammad Jaber solely/or to whoever he selects, the
right to publish and sell these songs using all the means
available in all parts of the world. I do hereby
approve, by signing this authorization to pledge not to
dispose once again of this music, or republish, sell, or
present them to any other individual, company, authority, or
institution.
I do hereby further state that by signing this
authorization and waiver of these pieces of music to Mr.
Mohsen Mohammad Jaber, I would have authorized him solely
and/or whoever he selects, fully, and irrevocably the right
to use this music in whatever way he deems necessary. Mr.
Mohsen Mohammad Jaber or his successors are solely the owners
of the financial usage rights stated in [Article 147 of the
2002 Egyptian Copyright Law[5]] for the pieces of music
listed hereinafter in the Arab Republic of Egypt and the
whole world [including Khosara], and the use includes
all the usage means and methods whether those currently
available or those that will be invented in the future and
whether it was audio, visual or audiovisual including the new
digital and technology means during the whole legal
protection period specified by the law.
Mr. Mohsen Mohammad Jaber and his successor become the sole
publisher of the melodies of these songs in all the current
publishing means and in any way he deems whether it was
direct or indirect. Mr. Mohsen Mohammad Jaber also has the
right to transfer all these rights or some of them or dispose
them to another company or institution using any trademark he
selects. . . .
I [Appellant] did also fully assign to Mr. Mohsen
Mohammad Jaber all our rights clarified in [the 1968
Agreement] between Sout El Phan Company and the musician
[Baligh Hamdy], or any other contracts and/or rights
pertaining to those pieces of music. As such, signing on this
document is considered as a final quittance from any of our
dues from Sout El Phan, and Mr. Mohsen Jaber, and his
successor, has the right to request and receive any financial
dues relevant to this music from any party . . . .
I [Appellant] received the amount of 115, 000 (only one
hundred fifteen thousand Egyptian Pounds) for this waiver and
declaration while maintaining our rights in respect of the
public performance and mechanical printing.
(Emphasis ...