' Copyright Beyond Borders: Moral Rights & the Implications of Fahmy v. Jay-Z | MTLR

Copyright Beyond Borders: Moral Rights & the Implications of Fahmy v. Jay-Z

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 under American copyright law, despite retaining exclusive rights to Khosara under the formulation of inalienable “moral rights” in Egypt’s copyright legal framework. Critically, the Court found, American copyright law did not extend the same kind of moral rights to Fahmy or other copyright holders in a similar position and therefore did not protect his rights to the music.

The legal dispute culminating in the Ninth Circuit decision spanned a total of eleven years and involved an exceedingly complicated factual web of copyright transfers and agreements. A simplified version of the relevant ownership history is this: in 1993, upon Hamdy’s death, Fahmy and the rest of the composer’s heirs inherited the rights to license and distribute his works, some of which had been previously transferred to Egyptian recording companies Sout el Phan and EMI Music Arabia, but which included Khosara. In 2002, Fahmy signed an agreement with the owner of a different company that had since acquired Sout el Phan to transfer certain rights to the company that encompassed the right to Khosara. While the Ninth Circuit largely ignored the thorny questions surrounding copyright ownership, focusing its attention on his claim to moral rights under Egyptian law as the primary basis for dismissal, the Court found that Fahmy had likely released his economic rights to the Khosara arrangement in 2002.

Fahmy v. Jay-Z decided a more significant and novel question than the plaintiff’s economic rights to the music, as Fahmy’s primary asserted rights were “moral” in nature rather than economic or property-based. His claim over Khosara was rooted in the Hamdy heirs’ personal, moral interest in the work—and specifically in preventing its exploitation by derivative works in such a way that the copyrighted material became, in the eyes of the copyright-owning heirs, “distorted” or “mutilated.” Fahmy argued that, under a conceptualization of moral rights to the integrity of an author’s work that many countries including Egypt have adopted, a copyright holder is entitled to a legal claim against the distortion of a work that would harm the author’s reputation or substantially offend his sensibilities such that the original work is tarnished by the derivative, in view of the copyright holder. Article 6bis of the Berne Convention, which the United States joined in 1989, recognizes and defines this moral right as “the right to claim authorship of the work and to object to any distortion, mutilation or other modification of…said work, which would be prejudicial to his honor or reputation.” To Fahmy and the rest of Hamdy’s heirs, Jay-Z’s sample of Khosara in Big Pimpin’ reflected a morally objectionable distortion of the copyrighted work transposed onto “vulgar and demeaning” lyrics and a sexually explicit music video. The Ninth Circuit denied Fahmy standing to object to the particular use in Big Pimpin’ or to any other use on the basis of his moral rights.

In one sense, Fahmy successfully raised and answered legal questions surrounding moral rights to the integrity of a musical work that had not previously been decided by the federal circuit courts, as American copyright law has consistently interpreted a narrower moral right under the Berne Convention that applies only to visual artistic works. But the claims to copyright infringement of a melody arranged for one discrete cultural moral landscape, and sampled in another entirely, are not new. In the particular context of Arab musical composition, many major artists have had their works sampled by American and Western musicians without authorization or credit, and in ways that would directly implicate justiciable questions of cross-cultural competency under a more encompassing moral rights theory of copyright law. The Ninth Circuit in Fahmy was unpersuaded by Fahmy’s argument that the Big Pimpin’ sample offended his sensibilities and degraded respect for Hamdy’s arrangement as originally intended. From the view of an objective legal standard, this proposition seems reasonably administrable: artists cannot object to the subjective vulgarity or morality of derivative works that interpret or meaningfully change their original work and are therefore valid under copyright law. Nonetheless, given that Fahmy was not the first (nor likely the last) copyright holder of a foreign musical work to spend years litigating his belief that another song to some degree tarnished the meaning and dignity of his protected work, the question is begged whether, and to what extent, the doctrinal evolution of American legal recognition of narrow moral rights might continue to implicate issues of cultural competency or appropriation. While little has been written about this singular dimension of the broader debate surrounding moral rights to integrity, the Fahmy decision reflects that the current position of American copyright law toward moral rights as a whole, itself out of step with dominant international legal conventions, at minimum mainstreams and strengthens a one-sided pattern of appropriation of foreign musical works by American artists, without stopping to address the implications of this approach on the creative freedoms and rights of foreign artists.

            The many virtues of artistic sampling in an increasingly globalized music industry must be balanced with the rights of musicians over their creative works, even and especially under such particularized interpretations of moral rights theory as the U.S. has maintained. At the same time, concerns over whether an artist is or should be entitled to certain personal “moral” rights on the basis of her work being a manifestation of her personality and individual moral inclinations also loom reasonably large and demand careful interpretation by the courts, with some attention to the cross-cultural and socio-political implications of denying such rights. Following Fahmy, one thing is clear: the tension between American copyright law’s protections for non-visual works and the international legal frameworks recognizing broad moral rights, to which the United States is a member, seems greater and more demanding of a solution in the context of music copyright than ever before.

Hafsa Tout is an Associate Editor on the Michigan Technology Law Review.

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