A federal judge recently dismissed a claim that Shawn Carter (better known to music fans as Jay Z) and Timothy Mosley (a music producer known as Timbaland) infringed a copyright by misappropriating “several notes of flute music” when they created the 1999 hit Big Pimpin’. Jay Z later spent $1 million to shoot a popular music video that contributed to the song’s commercial success.
The lawsuit was based on the claim that the flute notes infringe the copyright on Baligh Hamdi’s1957 song Khosara Khosara. The Egyptian composer’s nephew brought the infringement suit as the heir to Hamdi’s estate. Expert witnesses for both sides testified in an effort to persuade the jury that the sampling did not infringe a copyright.
Copyright Infringement Allegations
Jay Z acknowledges he was inspired by the beat of Khosara Khosara when music producer Timbaland played the flute notes for him. Within hours, Jay Z crafted a song that media accounts describe as a “raunchy ode to a promiscuous lifestyle.” The song “samples” the flute notes in Khosara Khosara.
Rap and hip-hop artists commonly “sample” music by incorporating a small piece of another song into music that they originate. Artists who sample typically start with a digital copy of notes in the song they are sampling. They might or might not alter the sample (by changing its tempo, for example) when adding it to their original creation.
When permission is given to sample, no copyright infringement occurs. Whether sampling without permission violates copyright law is not always clear, and the legal test may depend on the federal circuit in which the infringement lawsuit is commenced. The test often (but not always) asks whether the sample is too small to be important to the overall success of the new recording and whether the sample is significant to the listener’s appreciation of the new song.
While some artists view sampling as a tribute to the sampled work, others regard sampling as stealing. In fact, one of the first major cases to consider whether sampling constitutes copyright infringement begins with the words “Thou shalt not steal.” A key issue in the Big Pimpin’ trial was whether Jay Z and Timbaland stole the notes from Hamdi’s song or used them with permission.
Expert Testimony in the Big Pimpin’ Trial
Expert witnesses testified for both sides in the trial. A musicologist testified that four notes from Khosara Khosara are repeated throughout Big Pimpin’.
Scott Marcus, testifying as an expert for Hamdi’s nephew, said the notes were a significant part of Jay Z’s song. The defense countered that assertion with the expert testimony of musicologist Lawrence Ferrara, who described the notes as “trite, minimal,” and “fragmentary” compared to the song as a whole. He also testified that the sampled notes were “essential building blocks” of music and are not subject to copyright.
Timbaland testified that he created most of the beats for Big Pimpin’ before he added the notes from Khosara Khosara. He denied that the Khosara Khosara notes were a key to the song’s success.
Experts on Egyptian law also testified during the trial. In the end, none of the expert testimony carried the day, as the case was decided on a legal issue.
How the jury would have reconciled the conflicting expert opinions will never be known. When the trial ended, the judge decided that the evidence did not create a dispute that the jury needed to resolve.
Timbaland testified without contradiction that he paid $100,000 to EMI Arabia to acquire the right to sample Khosara Khosara. Timbaland made that payment after EMI Arabia asserted ownership of the song and complained that it was sampled without permission. Timbaland also testified that he believed he had purchased a valid license to use the flute notes when he settled EMI’s claim.
Hamdi’s nephew argued that the payment was irrelevant because Timbaland and Jay Z failed to obtain the family’s permission to combine the flute notes with the lyrics and melody in Jay Z’s song. The nephew also complained that Jay Z’s song was vulgar, but the song was never played in its entirety during the trial, so jurors were never exposed to lyrics they might have regarded as offensive.
Hamdi’s nephew contended that Egyptian law gave him a “moral right” to contest the derivative use of Hadmi’s song even if the nephew no longer owned rights to the song. After listening to the testimony of the Egyptian law experts, the judge ruled that Egyptian law did not apply and that Hamdi’s nephew lacked standing to sue since rights to the song were owned by EMI Arabia, not by the nephew. The judge therefore dismissed the lawsuit without sending it to the jury, leaving unresolved the issues about which the musicology experts testified.