By Anthony McCartney
THE ASSOCIATED PRESS
LOS ANGELES _ There’s no dispute that Jay Z‘s 1999 hit “Big Pimpin”’ includes elements of a 1950s Egyptian love ballad, yet the flute notes taken from “Khosara Khosara” have created a lingering problem for the rapper and a hit-making producer.
For two days last week, Jay Z and producer Timbaland sat in a courtroom in downtown Los Angeles, listening as lawyers and witnesses picked apart their song and the actions that led to its creation.
The men, who have a combined 25 Grammy Awards between them, are being sued by the nephew of the late Egyptian composer Baligh Hamdi, who wrote the distinctive flute notes that ended up in “Big Pimpin’.”
An attorney for Hamdi’s heir contends the artists and their labels never obtained the proper permission from Hamdi’s heirs to use “Khosara Khosara.” Lawyers for the pair, however, say proper permission to use the flute notes was obtained in 2001, Hamdi’s nephew has been paid for its usage and the case should be decided in Jay Z and Timbaland’s favour.
Testimony in the case will draw to a close on Tuesday, and then it will be up to an eight-person jury to wade through a complicated series of contracts, correspondence and agreements that span three continents.
They’ve heard directly from Jay Z and Timbaland, who explained how “Big Pimpin”’ came together and why they believe they have the right to use the “Khosara Khosara” notes.
Timbaland, whose real name is Timothy Mosley, paid $100,000 in 2001 to settle an out-of-court claim from a record company with rights to distribute Hamdi’s music outside Egypt. It would be another six years before Hamdi’s nephew, Osama Ahmed Fahmy, sued Mosley and Jay Z for copyright infringement. Fahmy also asserts the raunchy lyrics of “Big Pimpin”’ violate the “moral rights” of his uncle’s work, although that legal concept is enforceable only in Egypt and Jay Z‘s lyrics are not an issue in the case.
Toward the end of his testimony Wednesday, Mosley told jurors his reaction to Fahmy’s lawsuit when it emerged so many years after “Big Pimpin”’ was created: “So, who did I pay 100 grand to?”
Paying other artists to sample their work is commonplace, especially in the rap and hip-hop genres.
Mosley’s payment is how the system should work, said Jonathan Steinsapir, an intellectual property lawyer with the firm Kinsella Weitzman Iser Kump & Aldisert.
“It sure seems like Jay Z, Timabaland and their legal team in good faith thought they had a license,” he said. “They were doing what we want people to do.”
He added, “That’s not an insignificant fee at all,” Steinsapir said. “That’s a big fee. They paid it.”
Jay Z, whose real name is Shawn Carter, also said he believed they had all the appropriate rights for “Big Pimpin’.”
“We have the rights as you can see on the bottom of the CD,” Carter testified Wednesday, referencing liner notes that credit “Khosara Khosara.”
Whether jurors will see the claim in such simple terms remains to be seen.
Trials over song copyrights are rare, yet the “Big Pimpin”’ case is the second major case to get argued to a jury in Los Angeles this year. In March, a jury awarded Marvin Gaye’s children $7.4 million from Pharrell and Robin Thicke after determining their 2013 hit, “Blurred Lines” copied Gaye’s hit “Got to Give It Up.”
A judge later trimmed the verdict to $5.3 million, but the case remains mired in post-trial motions and will likely face years of appeals.
The cases are different. While there’s no dispute that “Khosara Khosara” is sampled on the Jay Z song, Pharrell denied he copied Gaye’s music. He acknowledged he was influenced by Gaye’s music and trying to recreate its feel, but said he didn’t copy it outright.
On Friday, a defence music expert testified that in his opinion the “Khosara Khosara” notes included on “Big Pimpin”’ were not an essential element of the song despite their repetition throughout. Fahmy’s expert, however, told jurors early in the trial that Hamdi’s notes are a significant part of “Big Pimpin’,” and moreover they would be instantly recognizable to an Egyptian audience.
“They light up because they’re lively,” said Scott Marcus, a professor of ethnomusicology at the University of California, Santa Barbara, who has studied Arab music extensively.
No matter the verdict, the case won’t be the last one musicians face when their hit songs share elements with other music _ whether they’re licensed or not. But Steinsapir said the case could have implications for future sampling claims, which are already pricey.
“It makes the costs of making hip hop music and other related music go up considerably,” Steinsapir said. “There are whole genres of music that are priced out.”