by Hafsa Tout | Apr 12, 2022 | Commentary |
Short of recognizing the validity of an “international copyright,” American intellectual property law generally purports to offer protections to foreign literary and artistic works under a number of international conventions to which the United States has been a signatory since the late 1880s. However, as emerging trends in the quickly globalizing music industry challenge the notion that “exclusive” tonal genres and scènes à faire can be fixed within geographic and cultural borders, courts are likely to face more complex questions about necessary international copyright protections for non-American artists when derivative works created in the U.S. appropriate elements of an underlying work beyond the scope of fair use or public domain. A 2019 decision by the U.S. Court of Appeals for the Ninth Circuit highlights a particularly novel issue at the intersection of legal protection for foreign works and the departure of American copyright law from much of the rest of the world with respect to recognition of a “moral right” to musical and non-visual works. In Fahmy v. Jay-Z, Osama Ahmed Fahmy, nephew and heir to the famous Egyptian composer Baligh Hamdy, appealed from a lower court’s dismissal of his lawsuit against Jay-Z, which alleged that the rapper’s 1999 single “Big Pimpin’” infringed the copyright in Hamdy’s arrangement for the popular 1957 film track “Khosara.” The five-minute record by Jay-Z and Timbaland sampled a significant and distinctive portion of the introductory flute melody from Hamdy’s composition, which continued on a loop in the background of Big Pimpin’ for the entirety of the song’s duration. The Ninth Circuit ultimately held that Fahmy failed to establish standing to bring the action...
