IP Law Daily Jay-Z awarded final judgment, but no attorney fees, in Big Pimpin’ copyright case
Wednesday, February 3, 2016

Jay-Z awarded final judgment, but no attorney fees, in Big Pimpin’ copyright case

By Peter Reap, J.D., LL.M.

Over three months after the court granted recording artist Jay-Z and other writers, producers, and publishers of the song Big Pimpin’ summary judgment in a copyright infringement lawsuit brought by the heir of a co-author of the Egyptian song Khosara, Khosara, which was sampled in Big Pimpin’, the federal district court in Los Angeles has dismissed the plaintiff’s claim with prejudice and exercised its discretion to decline to award attorney fees to the defendants (Fahmy v. Jay-Z, February 1, 2016, Snyder, C.).

In its October 21, 2015 grant of summary judgment, the court determined that in a 2002 agreement between plaintiff Osama Fahmy and Mohsen Mohammed Jaber, the owner of an Egyptian music company, Fahmy had assigned all of his economic rights in Khosara to Jaber. The court also determined that, to the extent Fahmy may have retained any moral rights in Khosara, those rights arose under Egyptian law and were therefore not cognizable as a matter of American law. Accordingly, the court ruled that Fahmy did not have standing to bring the instant suit for copyright infringement. In light of this order, on November 16, 2015, Fahmy filed the instant motion for entry of a final judgment pursuant.

Principally, the parties disputed whether the court’s prior order finding that Fahmy lacked standing constituted a dismissal of the case on the merits, the court noted. More specifically, the parties disputed whether the court determined that Fahmy lacked standing as a matter of constitutional standing––i.e., Article III’s requirement of an injury in fact––or statutory standing––i.e., that he had not demonstrated that he was the owner of a valid interest in a copyright, the statutory requirement to bring an action pursuant to the Copyright Act.

In the instant case, the court determined that Fahmy had assigned all of his economic rights in Khosara to Jaber and therefore was not “[t]he legal or beneficial owner of an exclusive right under a copyright.” Moreover, in reaching this decision the court cited and relied upon the standard set forth in 17 U.S.C. § 501(b)––the standing provision of the Copyright Act. Accordingly, the court’s ruling was appropriately considered as a determination that Fahmy lacked statutory standing, the court held.

Nonetheless Fahmy argued that, under the circumstances of this case, statutory standing also implicated the court’s jurisdiction under Article III. Specifically, Fahmy contended that he has never asserted that he suffered any actual damages in this case (such as lost sales or other economic losses). In other words, Fahmy argued that because he asserted only a violation of his statutory rights, and did not assert any actual damages, the statutory and constitutional standing inquiries effectively merged in this case.

However, the court did not need to determine whether Fahmy could have Article III standing in the absence of an allegation that he suffered actual damages, because Fahmy was incorrect about the allegations he made in this case, the court determined. Contrary to Fahmy’s assertion, he claimed actual damages since the inception of this case. In his complaint, Fahmy alleged that he suffered damages and would continue to suffer damages as a result of the defendants’ alleged infringement, the court observed.

At no point in this case did Fahmy ever dismiss or waive his claim for actual damages. Moreover, in the Final Pretrial Conference Order, Fahmy identified “the amount of plaintiff’s actual damages” as one of the issues to be tried to the jury.

Nonetheless, Fahmy argued that he had abandoned his claim for actual damages by the time that trial began. However, what was dispositive regarding whether or not Fahmy waived his claim for actual damages was the Final Pretrial Conference Order, which unequivocally stated that Fahmy was seeking actual damages. Accordingly, when the court ultimately dismissed this case for lack of statutory standing, that did not deprive the court of subject-matter jurisdiction. Rather, jurisdiction under Article III was independently established because Fahmy claimed, throughout this case, that he suffered actual damages as a result of the defendants’ alleged infringement of Khosara.

Therefore, the judgment in this case should reflect that this action was decided on the merits and the dismissal of Fahmy’s claims was with prejudice, the court ruled. Moreover, even if it was assumed, arguendo, that Fahmy lacked Article III standing, and thus that the court did not have jurisdiction to reach the merits of this case, the court would still find that it had jurisdiction to dismiss this case with prejudice as an exercise of the court’s inherent authority to determine its own jurisdiction.

In addition, the defendants were declared to be the prevailing parties in this action, the court held. Numerous courts in the Ninth Circuit have found that a defendant who obtains a determination that the plaintiff lacks statutory standing under the Copyright Act is a “prevailing party.” This is exactly the relief that the defendants obtained here.

Notwithstanding the foregoing, the court was still disinclined to award attorney fees in this matter. The Copyright Act provides that “the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” It was significant that no finding was ever made regarding the underlying claim of copyright infringement. Furthermore, this case involved numerous, complicated questions of Egyptian law, many of which remained contested until very late stages in this litigation and were crucial to the court’s finding that Fahmy lacked statutory standing, the court said. It could not be said that the arguments advanced by Fahmy were objectively unreasonable, nor could the court find that Fahmy’s claim was “frivolous.”

The case is No. 2:07-cv-05715-CAS-PJW.

Attorneys: Jonathan L. Gottfried (Browne George Ross LLP) for Osama Ahmed Fahmy. Andrew H. Bart (Jenner and Block LLP) for Jay-Z a/k/a Shawn Carter.

Companies: 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.; Warner Music Inc.

MainStory: TopStory Copyright CaliforniaNews

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