Fahmy v. Jay-Z et al

Filing 509

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court DENIES Plaintiffs' Motion for Partial Summary Judgment #450 in its entirety. The Court also rejects Defendants' request to dismiss the case based on plaintiffs alleged lack of standing. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Title

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

Present: The Honorable

Date

‘O’

May 27, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Not Present

Not Present

Proceedings:

I.

(IN CHAMBERS): PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON DEFENDANT’S LICENSE
AFFIRMATIVE DEFENSE (Dkt. No. 450, filed February 2, 2015)

INTRODUCTION

On August 31, 2007, plaintiff Osama Ahmed Fahmy (“plaintiff”) filed suit against
defendants Jay-Z, (aka Shawn Carter) (“Jay-Z”), Timothy Mosley (“Mosley”), Kyambo
Joshua, Rob Bourdon, Brad Delson, Mike Shinoda, Dave Farrell, Joseph Hahn, Chester
Bennington, Big Bad Mr. Hahn Music, Chesterchaz Publishing, EMI Blackwood Music
Inc., EMI Publishing Ltd., Kenji Kobayashi Music, Lil Lulu Publishing, Machine Shop
Recordings LLC, Marcy Projects Productions II, MTV Networks Enterprises Inc.,
Nondisclosure Agreement Music, Paramount Home Entertainment Inc., Paramount
Pictures Corporation, Radical Media, Rob Bourdon Music, Roc-A-Fella Records LLC,
Timbaland Productions Inc., UMG Recordings Inc., Universal Music and Video
Distribution Inc., and Warner Music Inc., alleging various claims of copyright
infringement. The gravamen of plaintiff’s claims is that defendants’ song Big Pimpin’
infringes plaintiff’s rights in the song Khosara, Khosara.
On February 2, 2015, plaintiff filed a motion for partial summary judgment as to
defendants’ affirmative defense that they had a license to use and perform Khosara,
Khosara. Dkt. No. 450. Plaintiff seeks an order adjudicating this defense in plaintiff’s
favor or, in the alternative, an order “holding that Defendants had no license to use
Khosara, Khosara at all after June 10, 2007 or to publicly perform Khosara, Khosara at
concerts at any time.” Id. at 4. Defendants filed a joint opposition on February 27, 2015,
and plaintiff filed a reply on March 16, 2015. Dkt. Nos. 464, 481. With leave of Court,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

defendants filed a surreply on March 26, 2015. Dkt. No. 494.1 On March 30, 2015, the
Court held a hearing. After considering the parties’ arguments, the Court finds and
concludes as follows.
II.

FACTUAL BACKGROUND

Plaintiff is an heir of Baligh Hamdi (“Hamdi”), an Egyptian composer who coauthored the song Khosara, Khosara in or about 1957. Compl. ¶ 8. Plaintiff alleges that
in approximately 1999, defendants Jay-Z and Mosley authored and recorded Big Pimpin’,
wherein Jay-Z sings rap lyrics over a recording of Khosara, Khosara. Id. ¶¶ 3, 12. Uses
of this song and allegedly related derivative works form the basis of plaintiff’s
infringement claims.
On May 2, 2011, the Court granted in part a prior motion for partial summary
judgment filed by plaintiff, finding as a matter of law (1) that Hamdi authored and owned
the copyright in the Khosara, Khosara musical composition; (2) that plaintiff is an heir of
Hamdi and became a co-owner in the Khosara, Khosara copyright by virtue of that fact;
and (3) that plaintiff has standing to bring claims that defendants’ works infringed the
Khosara, Khosara copyright. See Dkt. No. 271 at 18. In that same order, the Court
denied plaintiff’s request for summary judgment on the issue that “defendants do not
have a grant of permission to make derivative works from the Khosara, Khosara musical
composition,” which the Court found presented triable issues of fact. Id. at 18. In so
concluding, the Court determined that a transferable right to adapt or make derivative
works from copyrighted material “exists independently of inalienable moral rights” under
Egyptian law. Id. at 15.
The Court then considered plaintiff’s argument that, as a matter of law, the right to
create derivative works based on Khosara, Khosara could not have been transferred by

1

Defendants also filed numerous evidentiary objections. See Dkt. Nos. 466, 467,
490, 491. The Court does not cite to most of the objected-to evidence and therefore does
not address those objections. The Court overrules defendants’ objections to the extent the
objected-to evidence is cited in this order; however, the Court’s conclusions that
plaintiff’s motion and defendants’ request for dismissal should both be denied would not
be affected by striking any of that evidence.
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
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2:07-cv-05715-CAS(PJWx)

Date

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May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

any license that defendants claim to have had. The Court explained that the “relevant
documents to determine the chain of title” included (1) a 1968 agreement between Hamdi
and an Egyptian record company named “Sout el Phan,” through which some rights in
Khosara, Khosara were originally transferred; (2) an August 1995 agreement between
plaintiff and Sout el Phan, “through which Hamdi’s heirs confirmed the continuing
viability of the rights transferred through the 1968 agreement”; (3) a December 1995
agreement through which Sout el Phan transferred some exclusive rights in Khosara,
Khosara to a company called “EMI Music Arabia” (hereinafter “EMI Arabia”); and (4) a
March 2001 settlement agreement in which EMI Arabia granted Mosley the right to
exploit Big Pimpin’ in perpetuity free and clear of any claim by EMI Arabia.2 Id. at 16.
In that motion, plaintiff argued that these “chain of title” documents addressed only
sound recordings and did not grant (and could not have granted) the right to make
derivative works. The Court concluded that plaintiff’s argument “that these documents
do not contain the right to make derivative works because to do so would necessarily
violate Egyptian law with respect to an artist’s moral rights” was “unsound,” and that “a
triable question of fact otherwise exists with respect to the scope of the grant.” Id. at 18.3
The Court stated that in determining the scope of the grant, the jury could consider
“whether the grant was specific enough under Egyptian law,” as well as defendants’
argument that the chain of title “includes the right to make the type of use of Khosara,
Khosara complained of here.” Id.
On December 9, 2011, the Court granted defendants’ motion for partial summary
judgment on statute of limitations issues. The Court found that because plaintiff could
not prove a basis for equitably tolling the Copyright Act’s three-year statute of
2

The Court hereinafter refers to these agreements, respectively, as (1) the “1968
Agreement,” (2) the “August 1995 Agreement,” (3) the “December 1995 Agreement,”
and (4) the “2001 Settlement Agreement.” The parties do not dispute that sometime
around 2001, control of Sout el Phan’s musical catalog passed from Sout el Phan to
another Egyptian entity called Alam el Phan, to which plaintiff later granted at least some
rights in Khosara, Khosara. See Ancliff Decl. Exs. 7–9; Fahmy Depo (Lewis Decl. Ex.
1) at 197:21–198:17; Lewis Decl. Ex. 10.
3

See also Dkt. No. 309 at 9 (noting that in its May 2, 2011 order, the Court
“already determined that whether defendants had a license to produce “Big Pimpin’” is a
question for the jury”).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

limitations, he was barred from recovering damages from any alleged infringement
preceding August 31, 2004. Dkt. No. 309 at 4–10. The Court subsequently found
portions of plaintiffs’ claims barred by the equitable defense of laches, but vacated those
findings after the Supreme Court held in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.
Ct. 1962, 1967 (2014), that “[l]aches cannot be invoked to preclude adjudication of a
claim for damages brought within the three-year window” of the Copyright Act’s statute
of limitations. Dkt. Nos. 380, 386, 418.
III.

LEGAL STANDARD

Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114
F.3d 898, 902 (9th Cir. 1997).
In light of the facts presented by the nonmoving party, along with any undisputed
facts, the Court must decide whether the moving party is entitled to judgment as a matter
of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 &
n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to
be drawn from the underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co., 121
F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

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Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

when a rational trier of fact would not be able to find for the nonmoving party on the
claims at issue. See Matsushita, 475 U.S. at 587.
IV.

ANALYSIS
A.

Plaintiff’s Standing

The Court first addresses defendants’ argument, raised in their opposition brief,
that the Court should “sua sponte” dismiss this case based on plaintiff’s alleged lack of
standing. The Court previously found that plaintiff may not seek damages for alleged
infringement occurring prior to August 31, 2004. Dkt. No. 309 at 16. And under the
Copyright Act, only “[t]he legal or beneficial owner of an exclusive right under a
copyright is entitled . . . to institute an action for any infringement of that particular right
committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Defendants argue that
the combination of the statute of limitations ruling and plaintiff’s conveyance of certain
rights in Khosara, Khosara means that plaintiff has no standing to pursue any non-timebarred claims.
Defendants point to a December 2002 agreement between plaintiff and Mohsen
Mohammad Jaber (“Jaber”), who owns an Egyptian company called Alam el Phan, which
acquired a majority stake in Sout el Phan (the “2002 Agreement”).4 See Dkt. No. 464-1
(Lewis Decl.) Ex. 10. This agreement, titled “Authorization to Print, Publish, Sell, and
Circulate”), reads in relevant part:
I, [plaintiff] . . . . hereby assign to Mr. Mohsan 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, 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,

4

Plaintiff testified that the reason for the agreement was to “authorize the same
rights that had been authorized originally from Baligh Hamdi to Sout El Phan . . . because
of the sale of Sout el Phan” to Alam el Phan. Fahmy Depo. Feb 12, 2009 (Lewis Decl.
Ex. 1) at 206:25–207:7.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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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 . . . 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 further state that by signing this authorization and waiver
of these pieces of music to . . . 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. [Jaber] or his
successors are solely the owners of the financial usage rights stated in
the Law. No. 82 FOR THE YEAR 2002, for the pieces of music listed
hereinafter in the Arab Republic of Egypt and the whole world, and
the use includes all the usage means and methods whether those
currently available or those that will be inventedd [sic] 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. . . .
[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. [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 [plaintiff] 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.

Lewis Decl. Ex. 10. Defendants argue that because this Court has already determined
that Egypt’s Intellectual Property Law of 2002 “contains a ‘transferable adoption right’ as
[an] economic, non-moral right . . . regardless of the chain of title prior to the December
2002 Agreement, the December 2002 Agreement conclusively divested Plaintiff of any
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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May 27, 2015

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claim to the economic rights in [Khosara, Kosara] . . . from that time forward.” Opp’n at
17 (emphasis in original) (citing Dkt. No. 271 at 15).
The 2002 Agreement contains some language that could support a conclusion that
plaintiff transferred all of his economic rights in Khosara, Khosara, but the Court finds
the contract to be ambiguous on this point, and not properly adjudicated as a matter of
law on the current record. For example, although language making Jaber and his
successors “solely the owners of the financial usage rights stated in” the Egyptian
intellectual property law may weigh in favor of a finding that plaintiff transferred the
entirety of his economic rights, other features of the contract cut against that finding.
Most inconsistent with a complete transfer of all rights, the agreement states that plaintiff
“maintain[s] [his] rights in respect of the public performance and mechanical printing.”
This alone creates ambiguity as to whether plaintiff gave up all of his rights in Khosara,
Khosara. Similarly, “musical re-segmentation and alteration methods while maintaining
the original segment of the music” could arguably be read to expressly refer to sampling
or derivative works, as defendants urge. But it is not clear that this language does indeed
refer to the making of derivative works, and defendants do not submit expert testimony
suggesting that its use in an Egyptian contract would carry that meaning. Further, the
agreement is titled an “Authorization to Print, Publish, Sell, and Circulate,” and expressly
spells out a number of individual rights to be conveyed, but does not clearly authorize the
modification or adaptation of the included songs (which, as defendants point out, this
Court has previously found to be a distinct conveyable economic right under Egyptian
law). Especially given that Egyptian law provides that a transfer of economic rights must
“contain an explicit and detailed indication of each right to be transferred with the extent
and purpose of transfer,” Egyptian Law. No. 82 of 2002 (Wesley Decl. Ex. 6), the Court
finds that there are genuine issues of fact as to whether plaintiff conveyed all of his
rights, and that plaintiff’s claims should not be dismissed on the basis of lack of standing
at this juncture.5

5

Because the Court is not persuaded by the merits of defendants’ argument for
dismissal for lack of standing, the Court does not address the parties’ dispute over
whether 17 U.S.C. § 501 is jurisdictional, or plaintiff’s arguments that defendants’
request for dismissal in opposition to the instant motion is procedurally improper and
should be barred by the doctrine of judicial estoppel.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Title

OSAMA AHMED FAHMY V. JAY-Z, ET AL.
B.

Date

‘O’

May 27, 2015

Defendants’ License Defense

A license is a defense to copyright infringement that must be affirmatively pleaded.
Oddo v. Ries, 743 F.2d 630, 634 n.6 (9th Cir. 1984). Accordingly, an alleged infringer
has the burden of showing that he holds a license. Bourne v. Walt Disney Co., 68 F.3d
621, 631 (2d Cir. 1995). However, where “the scope of the license is at issue, the
copyright owner bears the burden of proving that the defendant’s copying was
unauthorized.” Netbula, LLC v. BlindView Dev. Corp., 516 F. Supp. 2d 1137, 1151
(N.D. Cal. 2007 ) (citing Bourne, 68 F.3d at 631); see S.O.S., Inc. v. Payday, Inc., 886
F.2d 1081, 1085 (9th Cir. 1989) (explaining that a copyright owner must prove copying
beyond the scope of a license).
Plaintiff concedes that the Court has already ruled that a material issue of triable
fact exists with respect to plaintiff’s argument “that defendants do not have a grant of
permission to make derivative works from the Khosara, Khosara musical composition.”
Dkt. No. 271 at 18. Nevertheless, plaintiff now argues that he is entitled to judgment on
defendants’ license defense “for other reasons[] not previously raised to or addressed by
this Court,” namely: (1) that the 2001 Settlement “is void as a matter of law” because the
Khosara, Khosara copyright owners did not consent to it; (2) that even if the 2001
Agreement could have conveyed a valid license to defendants, that license expired; and
(3) that any license conveyed to defendants could not have extended to the right to
publicly perform Khosara, Khosara at concerts, because EMI Arabia did not possess that
right to convey. Mot. at 3. The Court addresses each argument in turn.
1.

Plaintiff Is Not Entitled to Summary Judgment on the Ground
That the 2001 Settlement Agreement Could Not Have Conveyed
Valid Rights in Khosara, Khosara.

In Gardner v. Nike, Inc., 279 F.3d 774, 781 (9th Cir. 2002), the Ninth Circuit held
that an exclusive license may only be assigned or sublicensed “with the consent of the
licensor.” Plaintiff argues that neither he nor any other owner of the Khosara, Khosara

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

copyright consented to the 2001 Settlement Agreement that forms part of defendants’
asserted chain of title, and that the agreement is therefore void as a matter of law.6
As an initial matter, to the extent that plaintiff argues that, under Gardner, the
original copyright owner must consent to every step in a chain of exploitation, even if the
first licensing agreement expressly gives the licensee the right to sublicense the work in
question, the Court disagrees. First, the facts in Gardner were limited to a single original
exclusive license that “was silent as to [the licensee’s] right to assign its rights under the
exclusive license,” and a subsequent assignment of all of the licensee’s rights. 279 F.3d
at 776. This Court has characterized Gardner as holding “that an exclusive licensee
whose license was silent as to a right of assignment could not assign that license without
the copyright holder’s express consent.” Crispin v. Christian Audigier, Inc., 839 F. Supp.
2d 1086, 1095 (C.D. Cal. 2011) (emphasis added and omitted). As discussed below, the
agreements through which plaintiff conveyed rights in Khosara, Khosara are not silent as
to sublicensing rights. Moreover, the Gardner court focused on the need to obtain the
“consent of the licensor.” Gardner, 279 F.3d at 781 (emphasis added). Accordingly, the
Court concludes that Gardner requires an exclusive licensee who wishes to sublicense its
rights to obtain consent from the party that licensed those rights—and not, additionally,
from the original creator of the copyrighted works. See Ward v. Nat’l Geographic Soc’y,
208 F. Supp. 2d 429, 443 (S.D.N.Y. 2002) (citing Gardner, 279 F.3d at 778) (stating that
a “licensee [must] get explicit consent from his or her licensor” (emphasis added)).
Arguing that no rights holder with the authority to do so consented to the 2001
Settlement Agreement, plaintiff points to his own declaration testimony. On June 30,
2010, plaintiff declared: “Permission has never been given by the heirs of Baligh Hamdi

6

In places, plaintiff appears to reassert his argument that defendants could not have
obtained a valid license to create derivative works “because to do so would necessarily
violate Egyptian law with respect to an artist’s moral rights.” The Court declines to
revisit its ruling that to the extent plaintiff “requests that the Court determine whether
defendants’ use of Khosara, Khosara violated plaintiff’s moral rights in the work by
making changes that might be considered ‘mutilation or distortion’ of the original work,
the Court agrees with defendants that the claim does not arise under U.S. copyright law,
except to the extent that it is a reformulation of the question of whether defendants acted
outside of the scope of the relevant licenses.” Dkt. No. 271 at 15–16 & n.8.
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UNITED STATES DISTRICT COURT
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to alter . . . Khosara Khosara by using it in the Big Pimpin’ song or in any of the other
music, albums, films, videos or other work identified by my attorney in my Complaint [in
this case].” Wesley Decl. Ex. 8 ¶ 9. On February 2, 2015, plaintiff declared that no
opportunity was ever given for him to consent to the 2001 Settlement Agreement, that he
never consented to that agreement, and that it “has never been [his] intent nor belief that
the 2001 Settlement Agreement constitutes a license of [his] interest in the Khosara,
Khosara copyright. Fahmy Decl. ¶¶ 4–9.7
Defendants respond that plaintiff, in the August 1995 and 2002 Agreements,
authorized licensees of rights in Khosara, Khosara to select others to exercise those
rights. In the August 1995 Agreement, plaintiff, in his “capacity as an agent for the heirs
of the late Mr. Baleegh Hamdi . . . authorize[d] Sout el Phan . . . to print and publish
[songs including Khosara, Khosara] on all known mechanical printing matter and those
to be introduced in the future, including records, cassette tapes, and cartridges.” Lewis
Decl. Ex. 6. The August 1995 Agreement further stated: “This authorization gives Sout
el Phan company alone, or to those it selects, the right to publish and sell these songs
using all means and in all parts of the world . . . .” Id. (emphasis added). Plaintiff also
“pledge[d] not to dispose once again of this music, or republish, resell, or present them.”
Id. As noted above, the 2002 Agreement contains similar language, granting rights in
songs including Khosara, Khosara to Jaber “and/or whoever he selects, fully, and
irrevocably the right to use this music in whatever way he deems necessary,” and making
Jaber “or his successors [] solely the owners of the financial usage rights stated in the
Law No. 82 FOR THE YEAR 2002 for the pieces of music hereinafter.” Lewis Decl. Ex.
10. The 2002 Agreement also stated that Jaber “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.” Id.
In reply, plaintiff concedes that defendants’ evidence could support a finding that
plaintiff granted to Sout el Phan and Jaber rights to sublicense certain uses of Khosara
Khosara, but denies that the evidence creates a triable issue as to whether Sout el Phan or
Jaber (1) had the right to authorize EMI Arabia to sublicense rights in that song, or (2) in
fact granted to EMI Arabia “the right to sublicense without obtaining the consent of it or

7

Plaintiff also makes similar representations about the other copyright co-owners’
lack of consent, based “[o]n information and belief.” Fahmy Decl. ¶¶ 5, 6, 8, 10.
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UNITED STATES DISTRICT COURT
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May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

the copyright owners.”8 As to the first point, because the two agreements granted at least
some exclusive rights in Khosara, Khosara to Sout el Phan and Jaber and whomever they
selected, and do not seem to limit that selection, there is a triable issue of fact as to
whether those parties could validly grant licenses that themselves allowed for further
sublicensing. That is, it is not clear that “those it selects” and “whoever he selects” were
limited to one level of choice by Sout el Phan and Jaber.
Independently, there is a triable issue of material fact as to whether Sout el Phan
granted an implied license for Mosley to nonexclusively use Khosara, Khosara. Because
the Copyright Act’s requirement of a written instrument “applies solely to a ‘transfer of
copyright ownership,’ which by definition does not include nonexclusive licenses . . . .
nonexclusive licenses may . . . be granted orally, or may even be implied from conduct.
When the totality of the parties’ conduct indicates an intent to grant such permission, the
result is a nonexclusive license.” 3 Nimmer on Copyright § 10.03[A][7] (Matthew
Bender, rev. ed. 2014) (footnotes omitted); see 17 U.S.C. § 101 (defining “transfer of
copyright ownership” to exclude “a nonexclusive license”). This Court has explicitly
stated that a “a nonexclusive license can be transferred . . . by implication.” Crispin, 839
F. Supp. at 1092 (emphasis in original) (citing Foad Consulting Grp., Inc. v. Azzalino,
270 F.3d 821, 826–28 (9th Cir. 2001))). Explaining that courts “universally have
recognized that a nonexclusive license may be implied from conduct,” the Seventh
Circuit has held that “consent given in the form of mere permission or lack of objection is
also equivalent to a nonexclusive license and is not required to be in writing,” and that a
nonexclusive license “creates an affirmative defense to copyright infringement.” I.A.E.,
Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996) (citing Effects Assocs. v. Cohen, 908
F.2d 555, 559 (9th Cir. 1990)).

8

Plaintiff also argues that because the 2002 Agreement postdated the 2001
Settlement Agreement, it is irrelevant to the validity of the 2001 Settlement. However,
plaintiff testified that he understood the 2002 Agreement “to authorize the same rights
that had been authorized originally from Baligh Hamdi to Sout El Phan and then renewed
after Baligh Hamdi’s death.” Fahmy Depo. Feb. 13, 2009 (Lewis Decl. Ex. 1) at
205:9–207:4. Therefore, to the extent the 1995 Agreement is ambiguous, the 2002
Agreement may provide some interpretive aid.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

Defendants submit a declaration from Christopher Ancliff, who served as general
counsel for EMI Arabia between 1998 and 2002, during which time EMI Arabia asserted
that Big Pimpin’ infringed EMI Arabia’s rights in Khosara, Khosara that it obtained
through the December 1995 Agreement. Ancliff Decl. ¶¶ 1, 6. Ancliff declares that
“Sout el Phan and Alam el Phan were aware of, and encouraged, the negotiation of a
permanent settlement in 2001 between EMI Music Arabia and Defendant Timothy
Mosley concerning the alleged ‘sample’ of the Khosara Khosara composition.” Id. ¶ 14.
Defendants have produced evidence that in September 2000, the president of Sout el
Phan “confirm[ed] that in line with the [December 1995 Agreement between Sout el Phan
and EMI Arabia], EMI Music Arabia has the sole and exclusive right to exploit, to
protect, to publish and or sub-publish songs contained or records from the catalogue.” Id.
Ex. 5; Dhamodiwala Ex. 3. Defendants also submit letters that tend to indicate that Alam
el Phan supported EMI Arabia’s efforts to enforce and settle rights in Khosara, Khosara,
and (at least by May 21, 2001), was authorized to defend the Sout el Phan catalogue
against illegal use and handle negotiations regarding Khosara Khosara. Id. Exs. 7–9.
Finally, defendants produce declaration testimony from former EMI Arabia employees to
the effect that neither Alam el Phan nor any associated party has ever challenged EMI
Arabia’s ability to enter into the 2001 Settlement Agreement, or otherwise revoked or
objected to the validity of rights or sublicenses extended to defendants by EMI Arabia in
connection with Khosara, Khosara. Dhamodiwala Decl. ¶ 9; Ancliff Decl. ¶ 14. The
Court finds that this evidence raises a triable issue of material fact as to whether Sout el
Phan authorized EMI Arabia to sublicense the rights at issue, or itself impliedly
authorized a nonexclusive license for defendants to use Khosara, Khosara in Big
Pimpin’.9

9

The Court acknowledges that much of the evidence of Sout El Phan’s
acquiescence in the 2001 Settlement Agreement postdates the effective date of that
agreement, but still finds the evidence relevant to a “totality of the circumstances” inquiry
of whether a jury could conclude that Sout El Phan and Alam El Phan consented to
defendants’ use of Khosara, Khosara as contemplated in that settlement.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Title

OSAMA AHMED FAHMY V. JAY-Z, ET AL.
2.

Date

‘O’

May 27, 2015

Plaintiff Is Not Entitled to Summary Judgment on the Ground
that Any License Defendants Possessed Would Have Expired.

Next, plaintiff argues that any license defendants could have been granted would
have expired on June 10, 2007. Plaintiff reasons that the December 1995 Agreement
between Sout el Phan and EMI Arabia was entered into on December 11, 1995, and
originally had a term of ten years and six months. See Ancliff Decl. Ex. 1 at 7. Plaintiff
adds that the term of the December 1995 Agreement was extended by an additional year
through an April 23, 1996 agreement. Dkt. No. 461 (Wesley Decl. Ex. 5). Plaintiff
therefore concludes that the December 1995 Agreement expired on June 10, 2007, and
that any rights in Khosara, Khosara licensed to defendants after that date are invalid
because EMI Arabia did not have those rights to convey. See Delacroix v. Lublin
Graphics, Inc., 993 F. Supp. 74, 82 (D. Conn. 1997) (stating in reference to copyright that
a party “could only assign . . . those contract rights which it still possessed”).
In opposition, defendants argue that they have had rights to Khosara, Khosara
throughout the entire time period relevant to this suit because EMI Arabia’s rights in the
December 1995 Agreement remain valid to this day. Defendants first point to a renewal
provision in the December 1995 Agreement:
EMI shall have the right to renew this Agreement on identical terms
and financial conditions, otherwise the parties undertake to enter into
good faith negotiations to renew this Agreement at the expiry of the
Term and shall commence discussions at 1st January 2005. To the
extent that Agreement cannot be reached, LICENSOR [Sout El Phan]
may enter into negotiations with other parties but EMI shall have the
right to match any bona fide offer received from such third parties.
Ancliff Decl. Ex. 1. Plaintiff replies, however, that [t]here is no evidence that EMI
Arabia exercised its right to renew the December 1995 [A]greement with Sout el Phan.”
Reply at 8. The Court agrees that the fact that the agreement could have been
renewed—without any evidence that it was in fact renewed—is not sufficient to create a
triable issue of material fact as to its continued validity.
However, defendants also argue that there is a triable issue of fact as to whether
defendants had an implied license or contract implied in fact to continue to use Khosara,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

Khosara in Big Pimpin’. Defendants cite Autohaus Brugger, Inc. v. Saab Motors, Inc.,
567 F.2d 901, 915 (9th Cir. 1978), in which the Ninth Circuit repeated the following
statement of law:
A contract implied in fact derives from the ‘presumed’ intention of the
parties as indicated by their conduct. When an agreement expires by
its terms, if, without more, the parties continue to perform as
theretofore, an implication arises that they have mutually assented to a
new contract containing the same provisions as the old. . . . Ordinarily,
the existence of such a new contract is determined by the ‘objective’
test, i. e., whether a reasonable man would think the parties intended
to make such a new binding agreement whether they acted as if they
so intended.
Autohaus Brugger, 567 F.2d at 915 (quoting Martin v. Campanaro, 156 F.2d 127 (2nd
Cir. 1946)). Defendants argue that the evidence discussed above that Sout el Phan and
Alam el Phan were aware of, encouraged, and did not object to the 2001 Settlement
Agreement purporting to give defendants a perpetual right to use Khosara, Khosara in
Big Pimpin’, and did not object to defendants’ subsequent use, could also support a
finding of EMI Arabia’s continued rights in Khosara, Khosara. Viewing the evidence in
the light most favorable to defendants and drawing reasonable inferences in their favor,
the Court agrees that where defendants continued to exploit the song in question, and
neither Sout El Phan nor Alam El Phan protested after the expiration of the December
1995 Agreement that its rights were being violated, there is a genuine issue of material
fact as to whether a continued contract implied in fact was created.
Defendants also argue that a series of subsequent documents extended EMI
Arabia’s rights in Khosara, Khosara. Defendants first point to an August 1, 2008
“License Agreement” between EMI Arabia and Arab Audio FZ LLC (“Arab Audio”),
which is a licensing company associated with Alam El Phan (which, as noted previously,
succeeded to Sout el Phan’s rights in Khosara, Khosara). Dhamodiwala Decl. ¶ 6 & Ex.
4. Through this agreement, Arab Audio “grant[ed] EMI the exclusive administration
right . . . for the synchronization rights relating to audio or audio-visual broadcast of
Licensor’s Catalogue and Musical Reproductions (including sampling, cover versions,
remixes, etc.) . . . . in and all music or literary compositions, existing as on date and any
other compositions added during the term of the agreement . . . .” Dhamodiwala Decl.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

Ex. 4 ¶ 2. “Catalogue” is defined as “the Alam El Phan and Sout El Phan Audio
Catalogue.” Id. ¶ 1. This agreement had a term of one year. Id. ¶ 1. Defendants then
point to addenda renewing this August 1, 2008 Agreement through at least September 30,
2015. Dhamodiwala Decl. Exs. 5, 6.
Plaintiff replies that there is “no admissible evidence that Arab Audio ever owned
any rights in Khosara, Khosara,” and points out that the Arab Audio agreements do not
themselves mention Khosara, Khosara. Reply at 8 & n.4. But it is uncontested that,
prior to August 1, 2008, plaintiff granted to both Sout El Phan and Alam El Phan rights in
songs including Khosara, Khosara. Plaintiff does not contest that Arab Audio is
associated with Alam El Phan. And the Arab Audio agreements specifically refer to the
“Alam El Pham and Sout El Phan Audio Catalogue.” Defendants also point to records
produced by Broadcast Music, Inc. (“BMI”) in 2009, which list Sout El Phan and EMI
affiliates as the publishers of “Khasara Khasar” in the United States. Lewis Decl. Ex. 11.
From this evidence, a jury could conclude that the agreements could have validly
conveyed or renewed rights in Khosara Khosara.
For these reasons, the Court concludes that triable issues of material fact remain as
to whether any license defendants may have had in the rights at issue expired at any point
relevant to this lawsuit.10
3.

Plaintiff Is Not Entitled to Summary Judgment on the Ground
that Defendants Had No License to Publicly Perform Khosara,
Khosara.

Finally, plaintiffs argue that even if the 2001 Settlement Agreement could have
conveyed a valid license, it could not extend to public performances of Khosara, Khosara
at concerts because EMI Arabia did not possess that right to convey. “Copyright

10

Defendants also argue that even if EMI Arabia’s rights did expire, those rights
would revert to Alam el Phan—not plaintiff—because of the 2002 Agreement. As
discussed in Section IV.A above, the Court finds that there are triable issues of fact as to
the scope of rights plaintiff maintained in Khosara, Khosara after that agreement. To the
extent that defendants through this argument renew their request that the Court dismiss
plaintiff’s claims on the basis that plaintiff lacks standing, that request is denied.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

ownership is comprised of a bundle of rights.” Effects Assocs, 908 F.2d at 559. For
musical works, the Copyright Act specifically states that a copyright owner has the
exclusive right to perform the copyrighted work publicly, or to authorize the same. 17
U.S.C. § 106(4).11 “Any of the exclusive rights comprised in a copyright, including any
subdivision of any of the rights specified by section 106, may be transferred . . . and
owned separately.” Id. § 201(d)(2).
Plaintiff argues that the chain of agreements purportedly granting EMI Arabia
rights in Khosara, Khosara did not specifically convey the right to publicly perform
Khosara, Khosara, and points to his declaration testimony that the permission he gave to
Sout El Phan solely concerned printing, production, and release of a certain recording of
the song. Wesley Ex. 8 ¶ 7. Defendants respond that plaintiff himself does not possess
any public performance rights he can enforce, and that there is evidence that defendants
own performance rights.
a.

There Are Factual Disputes As to Whether Plaintiff Has Public
Performance Rights in Khosara, Khosara.

Defendants first argue that in a July 2007 letter, plaintiff disavowed any ownership
of performance rights in Khosara, Khosara, and therefore may not enforce such rights.
This letter, which bears the signature “Osama” under plaintiff’s name, states that “[w]e
were keen to avoid indicating any reference to our performing rights and reproduction
rights as we do not own it (totally owned by SACEM/SACERAU).”12 Lewis Decl. Ex. 4.

11

Article 147 of the 2002 Egyptian Intellectual Property Law also specifically
protects a public performance right, and provides that each economic right must be
specifically conveyed. Wesley Decl. Ex. 6.
12

SACERAU is an Egyptian performing and mechanical rights society; SACEM is
a similar French organization that collects music royalties and distributes them to authors,
composers, and publishers. See Diringer Decl. ¶ 1. Mohamed-Hossam Mhmoud Loutfi
Ibrahim, plaintiff’s legal expert, testified that members of SACERAU are also members
of SACEM. Loutfi Depo. (Lewis Decl. Ex. 3) at 66:1-16.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

In reply, plaintiff contends that the letter was not written by plaintiff, but rather by
“an Egyptian lawyer, who clearly does not speak English as a first language,” and that “to
the extent the lawyer intended to convey a belief that Plaintiff did not own any
performance rights in Khosara, Khosara, that would be inaccurate” for two reasons.
Reply at 23–24.13 First, plaintiff argues that record evidence clearly demonstrates that the
Hamdi heirs continue to own rights in the song. Plaintiff points to a declaration by the
Director of SACEM stating that “SACEM records continue to list Mr. Hamdi as owning a
share in Khosara, Khosara,” and that Hamdi’s heirs have since 2005 and “will continue
to receive royalties from any exploitation of that work.” Diringer Decl. ¶¶ 3–4. Plaintiff
also highlights the BMI records submitted by defendants, which show Hamdi as a rights
holder in Khosara Khosara. Lewis Decl. Ex. 11. Second, plaintiff argues that even if
SACEM were the legal owner of Khosara, Khosara, plaintiff would still be a beneficial
owner with standing to sue because he is eligible for royalties from SACEM.14
Second, defendants reiterate their position that plaintiff conveyed any performance
rights he once owned through agreements with Sout El Phan and Alam el Phan, and
therefore cannot enforce those rights. Defendants highlight a passage in the August 1995
Agreement that gives Sout El Phan or those it “selected” the right to use Khosara,
Khosara “in whichever way it deems necessary.” (In fuller context, the passage
authorizes Sout El Phan “to use this music whichever way it deems necessary to print
them on commercial records or cassettes and cartridge tapes, or for any other use under

13

Plaintiff also argues that the letter is inadmissible hearsay. But plaintiff produced
the letter in discovery and does not dispute that it carries his name or signature, and a
letter written on behalf of a person by his attorney is not hearsay. See Dailey v. Societe
Generale, 915 F. Supp. 1315, 1324 (S.D.N.Y. 1996) (“As a statement made on behalf of
Societe Generale by its general counsel, the [] letter was plainly not hearsay pursuant to
Fed. R. Evid. 801(d)(2)(C)–(D), which provides that party admissions are not hearsay.”),
vacated in part on other grounds, 108 F.3d 451 (2d Cir. 1996)).
14

Plaintiff relies on Love v. The Mail on Sunday, No. CV 05-7798 ABC (PJWx),
2006 WL 4046180 (C.D. Cal. Aug. 15, 2006), in which the court stated that “beneficial
owner” under 17 U.S.C. § 501(b) “includes an author who had parted with legal title in
exchange for percentage royalties based on sales or license fees.” Id. at *10 (quoting
H.R. Rep. No. 1476 9th Cong., 2d Sess. 159).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

the name and trademark of the company.” Wesley Decl. Ex. 2.) Defendants then point
out that the 2002 Agreement includes the word “performances.” See Wesley Decl. Ex. 4
(“I hereby assign to [Jaber] . . . and to whoever he selects, the right to print, publish and
use the music of the songs stated in this statement 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 . . . .”). Lewis Decl. Ex. 10. Defendants also
argue that public performance rights were conveyed by the statement that “Jaber or his
successors are solely the owners of the financial usage rights stated in the” Egyptian
Intellectual Property Law, which refers to public performance rights. Id.; Wesley Decl.
Ex. 6.
As plaintiff points out, however, the August 1995 Agreement and 2002 Agreement
both contain language to the effect that plaintiff and the other Hamdi heirs “retain our
right to the public performance.” Wesley Dec. Ex. 2; Lewis Decl. Ex. 10. For this and
the other reasons stated in Section A, supra, the Court concludes that there are triable
issues of fact as to whether plaintiff retained enforceable public performance rights in
Khosara, Khosara despite the August 1995 and 2002 Agreements.
b.

There are Factual Disputes as to Whether Defendants Have
Public Performance Rights in Khosara, Khosara.

Defendants argue that they gained public performance rights in Khosara, Khosara
through the August 1995 and 2002 Agreements discussed above.15 Defendants also
contend that Khosara, Khosara is part of the BMI repertoire, and that any public
performance of Khosara, Khosara would therefore be covered by the blanket license
obtained by the relevant venue.16 Defendants point to BMI business records for a song

15

The December 1995 Agreement between Sout el Phan and EMI Arabia stated that
it granted EMI Arabia, with respect to Sout el Phan’s catalogue, the “non-exclusive right
to perform publicly, or to permit the public performance of such Records by means of
radio broadcast or other audio means and to advertise Records on radio and television.”
Wesley Decl. Ex. 3 ¶ 2(A)(v).
16

On BMI blanket licenses generally, see Broadcast Music, Inc. v. Columbia Broad.
Sys., Inc., 441 U.S. 1, 5 (1979) (“BMI . . . . operate[s] primarily through blanket licenses,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

May 27, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

listed as “Khasara Khasar” written by Baligh Hamdi, with Sout el Phan and EMI entities
listed as the publishers in the United States. Lewis Decl. Ex. 11. Defendants reason that
EMI affiliates and Sout El Phan registered with BMI rights in Khosara, Khosara
“[c]onsistent with the grant of performance rights” they had received. Opp’n at 16.
Plaintiff argues, however, that there is no evidence that BMI actually “granted
Defendants a license to publicly perform Khosara, Khosara,” and that defendants have
therefore failed to raise a triable issue of fact on that point. Reply at 10.
The Court concludes that, just as there are triable issues of fact as to whether
plaintiff conveyed any performance rights he owned in Khosara, Khosara, there are also
genuine disputes of material fact as to whether defendants received a license to publicly
perform the song as part of Big Pimpin’ through their asserted chain of title or as a result
of BMI blanket licenses.
V.

CONCLUSION

In accordance with the foregoing, the Court DENIES plaintiffs’ motion for partial
summary judgment in its entirety. The Court also rejects defendants’ request to dismiss
the case based on plaintiff’s alleged lack of standing.
IT IS SO ORDERED.
00
Initials of Preparer

:

00

CMJ

which give the licensees the right to perform any and all of the compositions owned by
the members or affiliates as often as the licensees desire for a stated term.”); Broadcast
Music, Inc. v. McDade & Sons, Inc., 928 F. Supp. 2d 1120, 1124 (D. Ariz. 2013) (noting
that blanket licenses giving users “the right to publicly perform any of the works in the
BMI repertoire” are commonly given to “owners and operators of concert halls,
restaurants, nightclubs, and hotels”).
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