“Big Pimpin” Emphasizes the US Commitment to Economics Over the Moral Rights of Musicians

Jay-Z incorperated the tune of "Khosara, Khosara" into his hit "Big Pimpin". The Egyptian artist’s descendent brought the current claim based on moral rights, which are not recognized under US law.
November 9, 2015

The song “Big Pimpin” by Jay-Z became a nationwide hit in 1999 and reached number 18 on the U.S. Billboard Hot 100 chart. [1]  The song came under scrutiny in the District Court for the Central District of California and re-opened the issue of moral rights for artists in the United States. [2]  Moral rights “protect the authors’ personal or moral interest in the work”. [3]  In the current case, Osama Ahmed Fahmy, a descendent of the original artist Baligh Hamdy, filed a lawsuit against Jay-Z and Timbaland for incorporating the Egyptian song “Khosara, Khosara” into the framework of “Big Pimpin”. [4]  Fahmy claimed that the song violated the original artist’s moral rights, which are protected under Egyptian law; however, the court stated that while Egypt upholds economic and moral rights, the United States only recognizes economic rights. [5].  Under a previous agreement, the recording company Sout el Phan sold the rights to the song to EMI Music Arabia. [6]  While economic rights can be transferred, moral rights always remain with the original artist. [7]  Since moral rights are not recognized in the United States, the court granted the defendants’ motion for summary judgment. [8]

Should musicians retain their moral rights and should the United States follow Egypt’s example?  Most civil law countries have regulations in place to protect musicians’ moral rights in addition to economic rights. [9].  Moral rights are seen as an essential element of musical works that never leave the author because they are part of an artist’s personality, creativity, and individuality. [10]  The United States has veered away from international conventions that include moral rights, such as the Berne Convention of 1886, while maintaining a focus on creating public rights to various artistic works. [11]  Instead, the United States has joined projects, such as the Universal Copyright Convention that do not have moral rights provisions. [12]

While moral rights seem to protect artists, they may actually constrain creativity, as illustrated by Fahmy’s claim over the blending of “Khosara, Khosara” with “Big Pimpin”. [13]  While Jay-Z and Timbaland had the right to use “Khosara, Khosara” based on EMI Arabia’s purchase, should moral rights really limit their creativity and should artists be able to sell their moral rights?  [14]

Another important aspect of the dispute is the plaintiff’s emphasis on Egypt’s moral rights statute, which states that the author has a right to prevent the “‘distortion or mutilation of the work.’” [15].  Who gets to decide what is considered destruction or mutilation of a musical composition? [16]  It is a slippery slope because the concept of what is a good piece of work is  exceedingly subjective. [17]  Additionally, Jay-Z and Timbaland expressly stated that they used “Khosara, Khosara” as the basis for an original work; if an artist takes pride in their work, they try to create beautiful art and therefore do not see their music as a vehicle for destruction. [18]  The dispute over the line between art and mutilation of the original work is a topic that the United States courts seem to avoid unless there is a justified economic basis for the suit. [19]  The judgment of this case reaffirms the United States’ commitment to its economic analysis of the arts. [20]

[1] Jay-Z Chart History, Billboard, http://www.billboard.com/artist/304305/jay-z/chart (last visited Oct. 31, 2015); See Associated Press, Jay Z’s ‘Big Pimpin’’ Dispute Bound to Raise Cost of Making Hip Hop Music, Billboard, http://www.billboard.com/articles/columns/the-juice/6731019/jay-z-big-pimpin (Oct. 18, 2015).

[2] See Fahmy v. Jay-Z, No. 2:07-cv-05715-CAS(PJWx), 2015 U.S. Dist. LEXIS 143888, at *10-12 (C.D. Cal. Oct. 21, 2015).

[3] Id. at *13.

[4] See id. at *1-2; See Bonnie Eslinger, Jay Z Dodges ‘Big Pimpin’ Copyright Suit at Trial, Law 360 (Oct. 21, 2015), http://www.law360.com/articles/717046/jay-z-dodges-big-pimpin-copyright-suit-at-trial.

[5] See Fahmy, 2015 LEXIS 143888 at *1-16.

[6] See id. at *3-8.

[7] See Robert C. Bird & Lucille M. Ponte, Protecting Moral Rights in the United States and the United Kingdom: Challenges and Opportunities Under the U.K.’s New Performances Regulation, 24 B.U. INT’L L.J. 213, 217-18 (2006).

[8] See Fahmy, 2015 LEXIS 143888, at *33.

[9] See Bird & Ponte, supra note 7, at 213-14.

[10] See id. at 217.

[11] See Bird & Ponte, supra note 7, at 247-52.

[12] See id. at 247-48.

[13] See Fahmy, 2015 LEXIS 143888, at *3.

[14] See id. at *3-4

[15] Id. at *14 (statement of Walid Abu Farhat).

[16] See id.

[17] See id.

[18] See id. at *3-4.

[19] See id. at *17.

[20] See id. at *33.