My fashion law colleague Staci Riordan recently wrote an article on what she appropriately calls “#thejuggle” and the necessary balancing acts that today’s fashion and entertainment entrepreneur must do. It is a good read and I think will resonate especially with female entrepreneurs in the industry.
Welcome to another week of legal musings. Today’s conversation, “sampling!”
Sampling is so common in the entertainment industry, it is almost safe to say it is a way of “entertainment life.”
How Does Sampling Work?
An artist takes existing song and/or recorded performance and incorporates it into a new recorded performance.
What’s the Issue?
When an artist samples, he or she needs permission from the original creator of that music. A lack of permission means copyright infringement. For popular artists like Jay-Z it can also mean losing tons of money when a lawsuit strikes.
What Kind of Harm Are We Looking at With a Copyright Infringement Suit?
In a lawsuit, the Plaintiff can seek an injunction. This means you have to stop performance, distribution etc. of your song that includes the unauthorized sample.
The Plaintiff can also demand that all currently distributed copies of your song be pulled off the shelves. Ouch!
Finally, the Plaintiff will also typically seek monetary damages/compensation. I covered this a bit in the Mary J. Blige Copyright Infringement ‘Take Me As I Am’ lawsuit.
TIP: Artists and music producers, especially, you want your sample cleared before you even go through the pain of making the song and making it commercially available for sale. Get an entertainment lawyer to help you with this.
OUR CURRENT CASE
Jay-Z samples ‘Big Pimpin’ and unfortunately for him, it is turning out to be a case of what I call “Small Pimpin.'”
“Hip-hop superstar Jay-Z is facing a lawsuit over claims that the mogul’s megahit song “Big Pimpin” violates the “moral rights” of heirs of a 1960s Egyptian film composer. In a decision Tuesday, a California federal judge ruled that the plaintiff has standing to pursue a lawsuit, even if it’s grounded upon a quirky bit of Egyptian copyright code.
What is it with hip-hop producers sampling decades-old film music and then getting into legal trouble?
In March, we covered how Timbaland escaped a lawsuit for illegally sampling a 1967 Bollywood tune thanks to odd Indian copyright laws. Now, Jay-Z is in hot water for sampling a musical composition “Khosara, Khosara,” originally recorded for use in the 1960 Egyptian film Fata Ahlami. So far, Jay-Z isn’t nearly as fortunate as Timbaland was.
The original composition was created by Baligh Hamdy, and the copyright interests passed down to his four children upon his death in 1993. One of those children, Osama Ahmed Fahmy, is the plaintiff in this case against Shawn Carter (Jay-Z), EMI Publishing, MTV Networks, Paramount Pictures, UMG Recordings, Warner Music and many others.
In 1995, the Hamdy children licensed the right to mechanically reproduce “Khosara, Khosara” for sound recordings. Jay-Z and his team believe they acquired proper license to use the music.
That’s where Egyptian copyright law enters the picture.
The plaintiff says that to the extent the defendants obtained a license of the song for the 2000 hit “Big Pimpin,” it was merely what Egyptians call “economic rights” and only pertained to reproduction, performance or distribution of the work “without alteration.”
Egyptian copyright law also confers to owners “moral rights” over copyrighted work, which, according to the plaintiff’s experts, can’t be disposed of like “economic rights.” Basically, if Jay-Z wished to “mutilate” the original song by sampling it, looping it and adding his lyrics, the plaintiff argues he needed to get the express permission of each of Hamdy’s four children.
The defendants tried to waive this lawsuit away by saying that U.S. courts don’t have subject matter jurisdiction over Egyptian “moral rights,” but in a decision (below), Judge Christina Snyder seems willing to entertain the nuances of Egyptian law. . .”
MORE UDUAK LAW FIRM BLOG ANALYSIS
Before I send you off to THR., Esq to read the rest of Eriq’s article, let’s figure out the significance of the SMJ.
1. You get sued as in Jay-Z’s case.
2. After you’ve gone through “answering” the complaint, as the defendant, your lawyer must now think through ways to attack your opponent (The Plaintiff’s case) and make the case go away, as quickly as it came. From a lawyer standpoint, there are substantive and strategic reasons to attack the opponent’s case. On the substantive end, when a lawyer attacks your opponent’s case, the lawyer is basically trying to clarify and narrow the issues so the court knows what the case is about. On the strategic end, your lawyer attacks your opponents case to set the tone for litigation, get the case dismissed if he/she can and save you money. Here, Jay-Z attacks the case from a strategic standpoint. He says there is a subject matter jurisdiction (SMJ) issue. If he prevails, the case goes away, like really fast!
3. Broadly speaking, there are two key powers a court must have to hear a case before it can do anything: 1) Personal Jurisdiction (power over the person) and 2) SMJ (power over the actual subject that is in litigation).
Jay-Z says the court does not have SMJ over the case. It is more of less a “Motion to Dismiss the Case Because the Court Lacks Subject Matter Jurisdiction.” Unfortunately for Jay-z and his lawyer(s), the court disagrees and finds it does have the power to hear the subject matter raised in the lawsuit. Full story on THR. Esq.
I can’t help but think an “Empire State of Mind” might just be what Jay-Z needs to deal with this legal drama. Let’s see what happens!