Escolar Documentos
Profissional Documentos
Cultura Documentos
David A. Steinberg
MITCHELL SILBERBERG &
KNUPP LLP
11377 West Olympic Blvd.
Los Angeles, CA 90064
(310) 312-2000
Daniel A. Rozansky
JENNER & BLOCK LLP
633 West 5th Street, Suite 3600
Los Angeles, CA 90071
(213) 239-5100
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OTHER AUTHORITIES
Fed. R. Civ. P. 50 .....................................................................................................26
Fed. R. Evid.
103(d) ..................................................................................................................62
403...........................................................................................................24, 26, 59
611(a) ..................................................................................................................62
3 Melville B. & David Nimmer, NIMMER ON COPYRIGHT (Rev. ed.)
8D.01[A] ...................................................................................................passim
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PRELIMINARY STATEMENT
The District Court properly dismissed Plaintiff-Appellant Osama Ahmed
Fahmys (Plaintiff) case, after giving Plaintiff every conceivable opportunity to
prove he had one. At the close of evidence, the District Court correctly ruled that
Plaintiff had no standing to sue for copyright infringement under the United States
Copyright Act and granted Defendants motion for judgment as a matter of law
(Defendants JMOL), because Plaintiff failed to demonstrate the requisite
ownership of any exclusive right under the Copyright Act in the musical
composition authored in Egypt entitled Khosara Khosara (Khosara).
Plaintiffs lack of standing is irrefutably demonstrated in two simple steps:
First, the right to create and prevent derivative works (or adaptations) the only
exclusive right under the U.S. Copyright Act on which Plaintiff bases his claims
is a transferable right under applicable Egyptian law. As Plaintiffs own Egyptian
law expert conceded, all economic rights under the relevant 2002 Egyptian
Copyright Law, including the right to create and prevent derivative works, are
freely transferable.
Second, in a 2002 agreement (the 2002 Agreement), Plaintiff expressly
transferred the right to create and prevent derivative works (along with all of his
other exclusive economic rights in Khosara) to third party Mohsen Jaber (Jaber),
who thereafter became solely the owner[] of the financial usage rights (i.e., all
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Did the District Court correctly hold, as a matter of foreign law, that
the right to create and prevent derivative works the only exclusive right under the
U.S. Copyright Act on which Plaintiff bases his claims is transferable under
Egyptian law?
2.
Did the District Court correctly hold that, in the 2002 Agreement,
Plaintiff transferred to a third party any and all of his exclusive economic rights in
Khosara, including the right to create and prevent derivative works (or
adaptations) thereof, and thus did not have standing to bring a U.S. copyright
infringement claim?
3.
Did the District Court correctly hold that any Egyptian moral right
Plaintiff retained is fundamentally distinct from the exclusive rights under the
U.S. Copyright Act and not enforceable in the United States?
4.
JMOL; and, if not, do multiple issues preclude entry of judgment for Plaintiff?
6.
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Did Plaintiff fail to demonstrate any basis for remand; and even in the
event of remand, did Plaintiff fail to demonstrate any rare and extraordinary
circumstances justifying reassignment to another district judge? 2
STATEMENT OF THE CASE
I.
FACTUAL BACKGROUND
A.
Khosara
Pursuant to Ninth Circuit Rules 28(f) 28-2.7, pertinent statutes not set forth in
Plaintiffs addendum are set forth in a separately bound addendum filed
concurrently herewith, and assigned SER numbers for the Courts convenience.
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In September 1995, after Hamdys death, Plaintiff (on behalf of the Hamdy
heirs) entered into a license agreement with an Egyptian company, Sout el Phan
(the 1995 Fahmy-SEP Agreement), which included rights in Khosara. ER958966.5
On December 11, 1995, Sout el Phan entered into a License Agreement with
EMI Music Arabia (EMI). ER967-993 (the 1995 SEP-EMI Agreement). This
agreement granted to EMI, among other things, the sole and exclusive right to
protect, publish and/or sub-publish songs contained on records in the Sout el Phan
catalog, including Khosara. ER972. Thereafter, Sout el Phan repeatedly
confirmed to EMI that, under that agreement, it had the right to issue licenses for
Khosara, specifically including the one EMI ultimately issued to Defendants
(discussed below). See, e.g., ER340-349, ER353-362, 373-374 (Ancliff); ER593594, 608 (Cheesley); ER901; ER940-946; ER1001-1005; ER1007-1009; ER101314; SER1886-90; SER1891-93; SER1894-95; SER1899-1900. Plaintiff stipulated
that the rights owned by Sout el Phan passed to EMI in the 1995 SEP-EMI
Agreement. ER251 at 4:8-23.
In 1968, Hamdy himself had entered into a similar written agreement with Sout el
Phan. ER951-957.
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ARC also asserted a claim regarding the use of the ARC Recording in Big
Pimpin. Thereafter, Defendant Roc-A-Fella Records LLC obtained from ARC a
license for use of the ARC Recording. SER1637-49.
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After his 2001 inquiry, Plaintiff apparently was satisfied that EMI had the
right to license Khosara for use in Big Pimpin. Thereafter, on or about
December 11, 2002, Plaintiff entered into a new agreement with the owner of Sout
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PROCEDURAL HISTORY
A.
Plaintiffs Complaint
On August 31, 2007, six years after raising his claims with EMI and five
years after transferring all of his economic rights to Jaber, Plaintiff filed his
Complaint in this action. ER1455-72; ER1102, 5(j). Plaintiffs Complaint
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On August 12, 2013, the District Court granted Defendants motion for
summary judgment based on laches, finding that Plaintiffs delay of no less than
six and a half years before filing his Complaint (ER1360) was unjustified and
resulted in both expectations-based and evidentiary prejudice. ER1345-1352,
1364-1365.
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On September 24, 2015, the District Court issued its order on the parties
pretrial motions. As relevant to this appeal, the District Court granted Defendants
motion in limine No. 3 precluding Plaintiff from using sound recordings of
Khosara as evidence of the copyright in that composition. ER1146-50. The
District Court found that [p]resenting the sound recordings at trial carries a
significant risk of confusing and misleading the jury, which was particularly
problematic because plaintiff admits that his copyright does not include the 1992
recording. ER1149.13
The District Court also granted Defendants motion to bifurcate the liability
and damages phases of trial. ER1165-67.
The District Court denied Plaintiffs motion to reconsider this ruling at trial and
reiterated that presentation of the sound recordings at trial would create
confusion. ER30-32.
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14 See
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and dismissing his claims for lack of standing. None of Plaintiffs three arguments
has any merit, and dismissal of Plaintiffs claims should be affirmed.
A.
Plaintiff first argues that the District Court erred in granting Defendants
JMOL because, he claims, the 2002 Agreement did not transfer the right to
prohibit unauthorized derivative works. Op.Br., pp. 39-48. This argument fails.
In the 2002 Agreement, Plaintiff unambiguously and unconditionally transferred
all of his economic rights, including the freely transferable right to create and
prohibit derivative works. At most, Plaintiff retained a limited moral right to
object in Egypt to uses in Egypt deemed mutilations or distortions. Plaintiffs
argument otherwise is simply an attempt to confuse these two fundamentally
distinct rights, and to obtain redress in this Court for an unenforceable moral right.
1.
While the terms of the 2002 Agreement generally are to be interpreted under
Egyptian law, Plaintiffs standing to assert his claim for copyright infringement in
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The District Court correctly concluded that: (a) the right to create or prevent
derivative works is separately transferable under Egyptian law; and (b) the 2002
Agreement transferred all economic rights in Khosara, including the derivative
work right. That is all Defendants must show to sustain dismissal of Plaintiffs
claims.
a.
At the time of the 2002 Agreement, the 2002 Egyptian Copyright Law was the
operative law. ER744 (Loutfi) at 290:12-291:13.
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The term adaptation in Article 147 is equivalent to the term derivative works
in the U.S. Copyright Act. See ER742 (Loutfi) at 111:04-05. Thus, the term
adaptation includes the use of a sample, such as the sampling of the Khosara
composition in Big Pimpin. ER447, 451 (Farhat).
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When Plaintiff entered into the 2002 Agreement, he explicitly assigned all
of his economic rights in the Khosara composition to Jaber in a complete buy-out,
including the right to create and prevent derivative works such as Big Pimpin.
The 2002 Agreement states:
I, Osama Ahmed Fahm[y] [plaintiff] hereby assign to
Mr. Mohsen Mohammad Jaber and to whoever he
selects, the right to print, publish and use the music of the
songs stated in this statement [including Khosara]
including musical re-segmentation and alteration
methods while maintaining the original segment of the
music. 21 This authorization grants Mr. Mohsen
Mohammad Jaber solely/or to whoever he selects, the
right to publish and sell these songs using all the means
available in all parts of the world.
I do hereby further state that by signing this authorization
and waiver of these pieces of music to [Jaber], I would
have authorized him solely and/or whoever he selects,
fully, and irrevocably that right to use this music in
whatever way he deems necessary. [Jaber] or his
Even alone, this clause regarding musical re-segmentation and alteration
methods using the Arabic word tahwir (adaptation) used in Article 147
indicates assignment of the economic right to issue sample licenses as part of the
comprehensive assignment of rights to Jaber. See ER447, 456-457 (Farhat).
21
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Plaintiff argues that, because the District Court previously had found, in ruling
on a 2011 motion for summary judgment, that he had standing to bring his claims,
its order after trial dismissing his claims for lack of standing somehow was
improper. Op.Br., pp. 20-21. But the prior interim order was issued in May 2011
(see ER1422), before the District Court held that Plaintiffs alleged claims arising
prior to August 31, 2004 were time barred. See ER1396-1402. Thus, at that time
Plaintiff was asserting claims for the period prior to the 2002 Agreement. Once
the Court limited the time period of viable claims to those arising after 2004, that
prior order no longer was relevant. Moreover, as the District Court noted, standing
was not the gravamen of Plaintiffs motion or the May 2011 order. ER1428;
ER1147-1149. In any event, a district courts interim rulings are not law of the
case and are subject to re-determination upon further development of the record.
See Peralta v. Dillard, 744 F.3d 1076, 1088 (9th Cir. 2014) (en banc); U.S. v.
Houser, 804 F.2d 565, 567 (9th Cir. 1986) (citing Fed. R. Civ. P. 54(b)). And
Plaintiff was aware long before trial that Defendants challenged his standing based
on the 2002 Agreement, both parties took discovery on the scope of that agreement,
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Rather than refute any of the foregoing (because he cannot), Plaintiff instead
argues that Egyptian law prohibits the assignment of the authors right to prevent
unauthorized modifications to his work and that this right somehow is enforceable
in the United States. See Op.Br., pp. 39-48. That argument is false, fundamentally
misrepresents the distinction between economic and moral rights, and is an
impermissible attempt to import moral rights into this action under United States
copyright law, where such rights are unenforceable. 23
a.
and the issue was raised in the binding final Pre-Trial Conference Order. ER1100,
ER1104, ER1119.
Had Plaintiff wanted to retain a broad right to approve all adaptations, he could
have done so contractually, as Plaintiff himself concedes. Op.Br., p. 12 n.5 (citing
ER870-871).
23
Certain countries of the world have long recognized rights personal to authors,
and as such viable separate and apart from the economic aspect of copyright.
3 Nimmer 8D.01[A] at 8D-3. These rights are commonly referred to as moral
rights. In countries that recognize moral rights, those rights exist independently
of the artists economic interest in his work. Kelley v. Chicago Park Dist., 635
F.3d 290, 296 (7th Cir. 2011), cert. denied, 132 S. Ct. 380 (2011). Accordingly, an
artist may transfer all of her economic rights in a work while still maintaining
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Aware that that he cannot enforce moral rights in the United States, Plaintiff
tries to circumvent this by arguing that the Court must, as a matter of law, read into
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25 At
trial, Plaintiffs counsel conceded that Plaintiffs case boiled down to whether
Defendants respect[ed] Hamdys moral rights. ER92 at 66:6-10; see also ER88
(This case is about moral rights, here and in Egypt.).
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Plaintiff could have, but chose not to, contractually reserve the right to approve
all derivative works exploited around the world. Such a contractual term would be
enforceable under U.S. law. However, any attempt to exercise Egyptian moral
rights in the U.S., based on purportedly implied contractual terms, necessarily fails.
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The Ninth Circuit has rejected at least one similar attempt to use the principle
recited in Norfolk as an end run around U.S. federal sovereignty, holding that,
[w]hile appellant argues that contemporaneous laws are read into contracts as if
they were expressly referred to or incorporated in its terms, he fails to take into
account that essential attributes of sovereign power [are] also read into contracts
as a postulate of the legal order, and that accordingly, contracts are entered into
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Plaintiff argues at length that the District Court erred. Op.Br., pp. 41-48.
These arguments rely entirely on Plaintiffs initial misrepresentation that the
District Court assign[ed] the same exact right i.e., the right to modify a work
two different titles: (1) a moral right, and (2) an economic right. Op.Br., p. 42
(emphasis in original). 29 But these rights are manifestly not the same exact
right, as discussed at length above. The freely transferable economic right of
See also, e.g., Op.Br., p. 41 (misrepresenting moral rights under Egyptian law as
allowing authors to prevent modification generally).
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Plaintiff next argues, in the alternative, that the 2002 Agreement did not
clearly, specifically, and unequivocally convey the right to create derivative
works. Op.Br., pp. 29, 48-53. This argument fails.
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Article 149 of the 2002 Egyptian Copyright Law provides that a transfer of
economic rights shall contain an explicit and detailed indication of each right
to be transferred.30 ER922 at Article 149. 31 But it also provides, immediately
preceding this, that a copyright owner may transfer all or some of his economic
rights . Id.; accord ER448 (Farhat) at 51:2-3; ER743 (Loutfi) at 246:16-25.
Plaintiffs expert conceded that Article 147 contains a non-exhaustive list of
the economic rights (or financial usage rights) under Egyptian law. ER742
(Loutfi) at 302:10-303:08; see also ER922 at Article 147 (referring to exclusive
right to authorize or prevent any form of exploitation of his work, including
various examples, but expressly including all other means). Plaintiffs expert
also conceded there are many economic rights contemplated by Article 147, which
cannot possibly be listed comprehensively because it includes any form of
exploitation. ER743 at 276:06-10; accord ER446 (Farhat) at 49:14-24.
Thus, because Article 147 is a non-exhaustive list of economic rights, and
there are numerous potential economic rights in a work, it would be impracticable,
30 Plaintiff
does not contest that the 2002 Agreement satisfies all of the other
requirements of Article 149. Accord ER745 (Loutfi) at 339:8-340:3.
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33 The
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Even assuming it were true, the fact that a transferee does not exploit rights does
not indicate that the rights were not transferred.
35
At Jabers direction, that payment was made to Alam al Phan, a company owned
by Jaber. ER599-600 (Cheesley); SER1721-22.
36
Jules Jordan Video, Inc. v. 144942 Canada, Inc., 617 F.3d 1146, 1157 (9th Cir.
2010), cited by Plaintiff, is inapposite, as it applies only in the work for hire
context, and does not apply where, as here, the transferor in the agreement at issue
is not a party to the lawsuit. See Urbont v. Sony Music Entmt, 831 F.3d 80, 87-88
(2d Cir. 2016).
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rule in his favor on the merits of his infringement claims as to liability. This
request should be denied for multiple reasons.
A.
On October 20, 2015, at the close of evidence, both Plaintiff and Defendants
moved for judgment as a matter of law on liability only. See ER776; ER 785;
ER1034-63; SER1902-25. The District Court did not rule on or otherwise reach
the merits of Plaintiffs JMOL; instead, it decline[d] to reach plaintiffs motion
because it determined, as a matter of law, that Plaintiff lacked standing to bring his
claims and thus granted Defendants JMOL. ER26.
It is the general rule that a federal appellate court does not consider an
issue not passed upon below. Singleton, 428 U.S. at 120; see also Al-Haramain
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Moreover, even had the District Court ruled on Plaintiffs JMOL, an order on a
motion directed solely at liability without a determination of damages
ordinarily is not appealable. Hain Pure Food Co. v. Sona Food Prods. Co., 618
F.2d 521, 522 (9th Cir. 1980) (per curiam). Here, even if the District Court had
denied Plaintiffs JMOL, that denial would not have constituted a final decision on
the merits; instead, it would have left the determination of liability to the jury.
Plaintiff offers no reason for the Court to step in at this premature date to review
the purported denial of his JMOL.
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To prove infringement, Plaintiff bore the burden of establishing that: (i) Plaintiff
is the owner of a valid copyright in the portion of Khosara that allegedly was
infringed; and (ii) Defendants copied original, protectable elements of Khosara in
Big Pimpin. See Feist Publns v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991);
Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (2003).
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This Court may affirm on any ground that is supported by the record, whether
or not the district court relied on the same ground or reasoning. Hartmann v. Cal.
Dept of Corr. & Rehab., 707 F.3d 1114, 1121 (9th Cir. 2013). Accordingly, to the
extent this Court reaches these issues at all, it can and should construe several of
them as alternative grounds to affirm the judgment below. See Direct Techs., LLC
v. Elec. Arts, Inc., 836 F.3d 1059, 1068-69 (9th Cir. 2016).
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reversed unless manifestly erroneous. Joiner, 522 U.S. at 141-42; see also
As an initial matter, the District Courts Order on this issue was entirely
immaterial to the Judgment, which was based on Plaintiffs lack of standing arising
from the 2002 Agreement. This Court generally does not review [o]rders that
could not have affected the outcome, i.e., orders not material to the judgment[.]
Natl Am. Ins. Co. v. Certain Underwriters at Lloyds London, 93 F.3d 529, 540
(9th Cir. 1996); see also Banks v. ACS Educ., 638 Fed. Appx 587, 598 (9th Cir.
Jan. 4, 2016) (declining to consider issues relating to interim orders that were
immaterial to the final judgment). Plaintiff made no effort to show any reason
why this Court should deviate from this general rule. Moreover, because no
verdict was reached on infringement, Plaintiff also did not show and could not
show that he suffered any prejudice from the Courts in limine ruling. See
McEuin, 328 F.3d at 1032 (appellant must show that evidentiary ruling tainted the
verdict).
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The elements on the lead sheet differ significantly from the music embodied in
the 1992 Arc Recording sampled in Big Pimpin. See ER537, 542-545 (Ferrara);
compare ER906-907 (lead sheet) with SER1747-86 (transcription of Big Pimpin,
including sample of 1992 Arc Recording).
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The cases cited by Plaintiff are entirely inapposite. See Op.Br., p. 61. In neither
case was there any evidence that a lead sheet was available, as here, and in neither
case was there evidence (let alone from the plaintiffs expert himself) that the
sound recordings at issue necessarily contained improvisation outside the scope of
the musical composition. See Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004);
VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016); see also ER147, 179
(Marcus); ER1193 (Fahmy) at 245:4-12. Moreover, in VMG Salsoul, the plaintiff
sued for infringement of the musical composition and the sound recording, so
listening to the recordings obviously was appropriate. 824 F.3d at 879-80.
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case also was delayed due to the Supreme Courts intervening decision in
Petrella, 134 S. Ct. 1962 (2014), which materially changed the law governing
Defendants laches defense. See ER1335.
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appeal headline-grabbing attacks on the lyrics of Big Pimpin and its creators, to
present them in a derogatory and demeaning manner and to attempt to embarrass
them publicly. As he attempted to do at trial 50 Plaintiff seeks to divert focus from
the lack of merit of his appeal with an irrelevant discourse about whether the lyrics
of Big Pimpin are vulgar, sexually explicit, and misogynistic.
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ATTESTATION: The filer attests that concurrence in the filing of this document
has been obtained from all signatories.
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ATTESTATION: The filer attests that concurrence in the filing of this document
has been obtained from all signatories.
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Form 8.
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the
brief
. The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6). This brief is
words or
pages,
excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(i i), if applicable.
El This brief is accompanied by a motion for leave to file a longer brief pursuant to
Date
Dec 1,2016
If filing a brief that falls within the length limitations set forth at Fed. R. App. P. 32(a)(7)(B), use Form 6,
Federal Rules of Appellate Procedure.
(Rev.7/1/16)
69
ATTESTATION: The filer attests that concurrence in the filing of this document
has been obtained from all signatories.
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