International Copyright Law and Sampling: The United States’ Refusal to Enforce Other Country’s Copyright Laws

By: Nikolas Dean

As streaming services expand the music market exponentially, the opportunity for copyright infringement claims skyrocket.  Musicians sample music from international artists, and those artists attempt to bring copyright infringement claims in the United States.  In some cases, foreign artists ask the American courts to adopt their country’s copyright laws in order to substantiate the artist’s copyright infringement claim.  However, the Ninth Circuit Court of Appeals denied to use the Egyptian copyright model and ruled against the Fahmy family, setting an interesting precedent for how international copyright claims will be settled in the United States.

On May 31, 2018, Shawn Corey Carter (professionally known as Jay-Z), and his producer Timothy Mosley (professionally known as Timbaland) won a copyright infringement case against the Fahmy family in a legal battle that lasted more than a decade.  In 1999, Jay-Z and Timbaland released the song “Big Pimpin’.” The song sampled “Khosara Khosara” by the Egyptian composer Baligh Hamdi.  Baligh Hamdi was succeeded by his nephew, Osama Fahmy, who brought the copyright infringement claim in 2007.  Fahmy claimed that Jay-Z and Timbaland obtained permission to use the sample from EMI Music Arabia, but not from the Fahmy family, because they knew that the family would not grant permission based on the song’s vulgarity. Fahmy’s underlying copyright claim is brought solely under the theory of his “moral right” under Egyptian law to object to offensive uses of copyrightable material.

Originally, Jay-Z and Timbaland were sued by EMI Music Arabia in 2000, because they did not obtain a license to use the material. They later paid $100,000 to EMI Music Arabia in order to use the copyrightable material.  After the dispute, Fahmy devised his rights in the song to another individual, but still filed a copyright infringement suit against Jay-Z and Timbaland in the California courts.  The district court granted summary judgment in favor of Jay-Z and Timbaland, holding that the delay in Fahmy filing the copyright infringement suit precluded him from obtaining monetary damages accrued outside of the limitations period.  However, the Supreme Court held in a different case that claims filed outside of the limitations period cannot be invoked to preclude copyright infringement claims filed within the limitations period. Therefore, the district court vacated the summary judgement, and accepted Fahmy’s motion for reconsideration.

The Ninth Circuit Court of Appeals required that Fahmy establish some basis that he retained the exclusive right to prepare derivative works of “Khosara Khosara.” Fahmy alleged three manners in which he retained this exclusive right: (1) Fahmy alleges that it is impossible under Egyptian law to transfer the right to prohibit derivative works, because it is a moral right and, thus, inalienable; (2) Fahmy argues that even if the right was transferrable, it was not transferred effectively under Egyptian law; and (3) Fahmy also argues standing, because he has the right to receive royalties from derivative works per the 2002 contract. The Ninth Circuit ruled against the Fahmy family holding that that American law presides over the case, and refused to use or adopt Egyptian copyright law for the case.

The court’s disregard for foreign copyright law creates a new landscape for musicians sampling international artists, and limits the type of copyright infringement claims arising under the current music market.  For the rest of the world, this type of disregard for other rights granted under international copyright regimes will force international artists to bring copyright claims in their domestic courts if they want certain rights enforced against the alleged infringers.  For example, if an American hip hop artist were to sample an Argentinian jazz composer for a song, this would only be infringement in America according to American copyright law, and the rights extended to the composer under Argentinian law would have no force in America.

This will likely make streaming services an alternative target for these copyright cases, because of its international reach and deep pockets.  It is uncertain how these streaming services will ultimately be affected by this Ninth Circuit decision; however, it is possible that international artists will attack proceeds generated by the infringing material under the streaming service rather than the proceeds generated by the infringing individual themselves.   In other words, the American court’s unwillingness to adopt foreign copyright regimes will shift the legal burden from the American courts to the streaming services providing the content worldwide.  This could possibly stifle certain artist’s ability to gain worldwide acclaim, and create significant hurdles to the availability of music in other countries across the Americas.

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