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Case No. 16-55213


UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSAMA AHMED FAHMY,
Plaintiff-Appellant,
v.
SHAWN CARTER pka JAY Z, et al.,
Defendants-Appellees
DEFENDANTS-APPELLEES ANSWERING BRIEF

Appeal from a Final Judgment of the United States District Court


Central District of California
Case No. 2:07-CV-05715 CAS (PJWx)
The Honorable Christina A. Snyder, United States District Judge
Christine Lepera
MITCHELL SILBERBERG &
KNUPP LLP
12 East 49th Street, 30th Floor
New York, NY 10017
(212) 509-3900

David A. Steinberg
MITCHELL SILBERBERG &
KNUPP LLP
11377 West Olympic Blvd.
Los Angeles, CA 90064
(310) 312-2000

Attorneys for Defendants-Appellees other than Shawn Carter (pka Jay Z)


Andrew H. Bart
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022
(212) 891-1600

Daniel A. Rozansky
JENNER & BLOCK LLP
633 West 5th Street, Suite 3600
Los Angeles, CA 90071
(213) 239-5100

Attorneys for Defendant-Appellee Shawn Carter (pka Jay Z)

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ............................................................................... 1
JURISDICTIONAL STATEMENT .......................................................................... 3
STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 4
STATEMENT OF THE CASE .................................................................................. 5
I. FACTUAL BACKGROUND ............................................................................... 5
A. Khosara............................................................................................................5
B. Plaintiff Licenses Khosara to Sout el Phan, Which Then Licenses
Khosara to EMI ...............................................................................................6
C. Big Pimpin and Defendants Right to Use Khosara ...................................... 7
D. Exploitation of Big Pimpin............................................................................. 8
E. Defendants Reliance on Plaintiffs Inaction in the Face of the EMIMosley Agreement...........................................................................................9
F. Having Been Assured that EMI Had the Right to License Khosara For
Use In Big Pimpin, in 2002 Plaintiff Transfers All of His Economic
Rights in Khosara ..........................................................................................11
II. PROCEDURAL HISTORY ...............................................................................13
A. Plaintiffs Complaint .....................................................................................13
B. The District Court Limits Plaintiffs Claims to Three Years Before the
Filing of the Complaint..................................................................................14
C. The District Court Grants Defendants Summary Judgment on Laches,
But Then Is Compelled To Reconsider Post-Petrella ...................................14
D. The District Courts Pre-Trial Rulings ..........................................................15
E. The District Court Grants Defendants JMOL, Finding that Plaintiff
Lacked Standing ............................................................................................16
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TABLE OF CONTENTS
(continued)
Page
SUMMARY OF ARGUMENT ...............................................................................17
STANDARDS OF REVIEW ...................................................................................25
ARGUMENT ...........................................................................................................27
I. THE COURT SHOULD AFFIRM THE DISTRICT COURTS DISMISSAL
OF PLAINTIFFS CLAIMS FOR LACK OF STANDING ..............................27
A. Plaintiff Transferred All of His Economic Rights; and Any Moral
Rights Retained are Not Cognizable in U.S. Courts .....................................27
1. Applicable Standards of Law ...................................................................27
2. In the 2002 Agreement, Plaintiff Transferred the Right to Create
Derivative Works (Including Big Pimpin) ..............................................29
a. The Right to Create Derivative Works is a Freely Transferable
Economic Right Under Egyptian Law ................................................29
b. In the 2002 Agreement, Plaintiff Transferred All Economic
Rights, Including Derivative Work Rights..........................................31
3. Plaintiffs Primary Argument is a Disguised Moral Rights Claim
Not Cognizable in the United States ........................................................35
a. Moral Rights Are Not Enforceable in the United States .....................35
b. All Plaintiff Retained After the 2002 Agreement Was the Right
to Enforce Moral Rights in Egypt for Exploitations in Egypt ............ 36
c. Plaintiffs Attempt to Smuggle Moral Rights into U.S. Courts
Fails .....................................................................................................38
4. Plaintiffs Attacks on the District Courts Reasoning Fail.......................43
5. If Adopted, Plaintiffs Position Would Lead to a Flood of Moral
Rights Litigation in U.S. Courts ...............................................................44

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TABLE OF CONTENTS
(continued)
Page
B. The 2002 Agreement Clearly and Unequivocally Granted the Right to
Create Derivative Works of Khosara ............................................................45
1. The 2002 Agreement Satisfies Article 149 of the 2002 Egyptian
Copyright Law ..........................................................................................46
2. Nothing in the Context of the 2002 Agreement Limits Plaintiffs
Transfer of the Right to Create Derivative Works ...................................47
C. Plaintiff Has No Standing As A Beneficial Owner .......................................49
II. PLAINTIFF IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW
ON LIABILITY ..................................................................................................52
A. This Court Should Not Decide Plaintiffs JMOL ..........................................52
B. Plaintiff is Not Entitled to Judgment as a Matter of Law ..............................53
III. THE DISTRICT COURTS IN LIMINE RULING EXCLUDING SOUND
RECORDINGS OF KHOSARA FROM EVIDENCE WAS NOT AN ABUSE
OF DISCRETION...............................................................................................58
IV. PLAINTIFF FAILS TO ESTABLISH EXTRAORDINARY
CIRCUMSTANCES JUSTIFYING REASSIGNMENT ...................................61
V. NO LEGITIMATE BASIS EXISTS FOR PLAINTIFF TO HAVE RAISED
THE LYRICS OF BIG PIMPIN FOR REVIEW ON THIS APPEAL ............. 64
CONCLUSION ........................................................................................................66

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TABLE OF AUTHORITIES
Page(s)
CASES
Al-Haramain Islamic Found., Inc. v. Bush,
507 F.3d 1190 (9th Cir. 2007) ............................................................................52
Banks v. ACS Educ.,
638 Fed. Appx 587 (9th Cir. Jan. 4, 2016) ........................................................58
Barsten v. Dept of Interior,
896 F.2d 422 (9th Cir. 1990) ..............................................................................53
Bleistein v. Donaldson Lithographing Co.,
188 U.S. 239 (1903) ............................................................................................65
Broad v. Sealaska Corp.,
85 F.3d 422 (9th Cir. 1996) ................................................................................50
Browning v. Woodford,
372 F. Appx 811 (9th Cir. Mar. 31, 2010) ........................................................48
California v. Montrose Chem. Corp.,
104 F.3d 1507 (9th Cir. 1997) ............................................................................63
Carson v. Dynegy, Inc.,
344 F.3d 446 (5th Cir. 2003) ..............................................................................56
Carter v. Helmsley-Spear, Inc.,
71 F.3d 77 (2d Cir. 1995) .............................................................................36, 39
Cheffins v. Stewart,
825 F.3d 588 (9th Cir. 2016) ........................................................................36, 66
Direct Techs., LLC v. Elec. Arts, Inc.,
836 F.3d 1059 (9th Cir. 2016) ............................................................................54
DP Aviation v. Smiths Indus. Aero. & Def. Sys.,
268 F.3d 829 (9th Cir. 2001) ..............................................................................25
Feist Publns v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) ............................................................................................54
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TABLE OF AUTHORITIES
(continued)
Page(s)
Friedman v. Zimmer,
2015 U.S. Dist. LEXIS 143941 (C.D. Cal. July 10, 2015)...........................36, 45
Gambra v. Intl Lease Fin. Corp.,
377 F. Supp. 2d 810 (C.D. Cal. 2005) ................................................................64
Garcia v. Google, Inc.,
786 F.3d 733 (9th Cir. 2015) (en banc) ..............................................................35
Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997) ................................................................................24, 26, 58
Glen Holly Entmt, Inc. v. Tektronix Inc.,
352 F.3d 367 (9th Cir. 2003) ..............................................................................63
Hadady Corp. v. Dean Witter Reynolds, Inc.,
739 F. Supp. 1392 (C.D. Cal. 1990) ...................................................................57
Hain Pure Food Co. v. Sona Food Prods. Co.,
618 F.2d 521 (9th Cir. 1980) (per curiam) .........................................................53
Hampton v. Paramount Pictures Corp.,
279 F.2d 100 (9th Cir. 1960) ..............................................................................56
Hart v. Elec. Arts, Inc.,
717 F.3d 141 (3d Cir. 2013) ...............................................................................66
Hartmann v. Cal. Dept of Corr. & Rehab.,
707 F.3d 1114 (9th Cir. 2013) ............................................................................54
HDM Flugservice GmbH v. Parker Hannifin Corp.,
332 F.3d 1025 (6th Cir. 2003) ............................................................................62
Henry A. v. Willden,
678 F.3d 991 (9th Cir. 2012) ..............................................................................62
Hunt v. Cnty. of Orange,
672 F.3d 606 (9th Cir. 2012) ..............................................................................50
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TABLE OF AUTHORITIES
(continued)
Page(s)
I.A.E., Inc. v. Shaver,
74 F.3d 768 (7th Cir. 1996) ................................................................................56
In re Lewis,
506 F.3d 927 (9th Cir. 2007) ..............................................................................42
Janes v. Wal-Mart Stores, Inc.,
279 F.3d 883 (9th Cir. 2002) ..................................................................22, 26, 50
Jean v. Bug Music, Inc.,
2002 U.S. Dist. LEXIS 3176 (S.D.N.Y. Feb. 25, 2002) ....................................57
Jules Jordan Video, Inc. v. 144942 Canada, Inc.,
617 F.3d 1146 (9th Cir. 2010) ............................................................................49
Kaho v. Ilchert,
765 F.2d 877 (9th Cir. 1985) ..............................................................................25
Kelley v. Chicago Park Dist.,
635 F.3d 290 (7th Cir. 2011), cert. denied, 132 S. Ct. 380 (2011)...............35, 39
Krechman v. Cnty. of Riverside,
723 F.3d 1104 (9th Cir. 2013) ............................................................................61
Luke Records v. Navarro,
960 F.2d 134 (11th Cir. 1992) (per curiam) .......................................................65
Maddox v. Patterson,
905 F.2d 1178 (8th Cir. 1990) ............................................................................62
Martin v. Cal. Dept of Veterans Affairs,
560 F.3d 1042 (9th Cir. 2009) ............................................................................26
Martin v. City of Indianapolis,
192 F.3d 608 (7th Cir. 1999) ..............................................................................65
McEuin v. Crown Equip. Corp.,
328 F.3d 1028 (9th Cir. 2003) ..........................................................24, 26, 58, 59
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TABLE OF AUTHORITIES
(continued)
Page(s)
McMillan v. U.S.,
112 F.3d 1040 (9th Cir. 1997) ............................................................................25
Moore v. Czerniak,
574 F.3d 1092 (9th Cir. 2009),
revd on other grounds, 562 U.S. 115 (2011) .....................................................50
Mustang Mktg. v. Chevron Prods. Co.,
406 F.3d 600 (9th Cir. 2005) ........................................................................26, 61
Natl Am. Ins. Co. v. Certain Underwriters at Lloyds London,
93 F.3d 529 (9th Cir. 1996) ................................................................................58
Newton v. Diamond,
204 F. Supp. 2d 1244 (C.D. Cal. 2002),
affd, 388 F.3d 1189 (9th Cir. 2003) ................................................57, 58, 59, 60
Norfolk & W. Ry. Co. v. Am. Train Dispatchers Assn,
499 U.S. 117 (1991) .....................................................................................passim
Peralta v. Dillard,
744 F.3d 1076 (9th Cir. 2014) (en banc) ............................................................34
Petrella v. Metro-Goldwyn-Mayer, Inc.,
134 S. Ct. 1962 (2014) ..................................................................................15, 63
Rice v. Fox Broad. Co.,
330 F.3d 1170 (2003)..........................................................................................54
Riensche v. Cingular Wireless, LLC,
496 F. Appx 760 (9th Cir. Oct. 24, 2012) .........................................................64
Robbins v. Lee,
285 F. Appx 462 (9th Cir. July 11, 2008) .........................................................57
Roberts v. Gordy,
2016 U.S. Dist. LEXIS 47694 (S.D. Fla. Apr. 8, 2016) ...............................23, 51

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TABLE OF AUTHORITIES
(continued)
Page(s)
Shaw v. City of Sacramento,
250 F.3d 1289 (9th Cir. 2001) ............................................................................25
Silvers v. Sony Pictures Entmt, Inc.,
402 F.3d 881 (9th Cir. 2005) (en banc) ........................................................19, 34
Singleton v. Wulff,
428 U.S. 106 (1976) ................................................................................23, 52, 53
Skidmore v. Led Zeppelin,
2016 U.S. Dist. LEXIS 51006 (C.D. Cal. Apr. 8, 2016) ....................................60
Subafilms, Ltd. v. Mgm-Pathe Communications Co.,
24 F.3d 1088 (9th Cir. 1994) (en banc) ..............................................................42
Swirsky v. Carey,
376 F.3d 841 (9th Cir. 2004) ..............................................................................60
Three Boys Music Corp. v. Bolton,
212 F.3d 477 (9th Cir. 2000) ..............................................................................57
Torres v. City of L.A.,
548 F.3d 1197 (9th Cir. 2008) ......................................................................25, 54
U.S. Cellular Inv. Co. of L.A., Inc. v. GTE Mobilnet, Inc.,
281 F.3d 929 (9th Cir. 2002) ..............................................................................55
U.S. v. Houser,
804 F.2d 565 (9th Cir. 1986) ..............................................................................34
U.S. v. Natl Med. Enters., Inc.,
792 F.2d 906 (9th Cir. 1986) ..............................................................................64
Urbont v. Sony Music Entmt,
831 F.3d 80 (2d Cir. 2016) .................................................................................49
Virginia v. Black,
538 U.S. 343 (2003) ............................................................................................65
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TABLE OF AUTHORITIES
(continued)
Page(s)
VMG Salsoul, LLC v. Ciccone,
824 F.3d 871 (9th Cir. 2016) ..............................................................................60
Walker v. Univ. Books, Inc.,
602 F.2d 859 (9th Cir. 1979) ..............................................................................34
Wallert v. Atlan,
141 F. Supp. 3d 258, 278 (S.D.N.Y. 2015) ..................................................22, 50
Warren v. Fox Family Worldwide, Inc.,
328 F.3d 1136 (9th Cir. 2003) ............................................................................51
Williams v. Bridgeport Music, Inc.,
2014 U.S. Dist. LEXIS 182240 (C.D. Cal. Oct. 30, 2014) ................................60
Worldwide Church of God v. Philadelphia Church of God, Inc.,
227 F.3d 1110 (9th Cir. 2000) ............................................................................55
STATUTES
17 U.S.C.
104(c) ...............................................................................................................36
106..............................................................................................................28, 44
106(1) ...............................................................................................................52
106(2) .........................................................................................................28, 52
106(4) ...............................................................................................................52
501(b) .........................................................................................................28, 51
28 U.S.C.
1331....................................................................................................................3
1338....................................................................................................................3
2002 Egyptian Copyright Law
Article 143 ..................................................................................................passim
Article 147 ..................................................................................................passim
Article 149 ...................................................................................................46, 47

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TABLE OF AUTHORITIES
(continued)
Page(s)
Berne Convention
Article 5(2) ..........................................................................................................42
Article 6bis ..............................................................................................30, 36, 40
Article 12 ............................................................................................................30
Berne Convention Implementation Act,
Pub.L. No. 100-568, 102 Stat. 2853 (1988) .......................................................36

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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economic rights) under the 2002 Egyptian Copyright Law. Therefore, Plaintiff
lacked standing to bring his claims against Defendants-Appellees (Defendants)
for use of Khosara in the allegedly infringing work Big Pimpin, and his claims
properly were dismissed.
Faced with this reality, Plaintiff resorts to outright sophistry, claiming that a
limited Egyptian moral right of integrity is equivalent to the right to prepare
derivative works under the U.S. Copyright Act, and could not be transferred. He is
wrong. The right to prepare derivative works is an economic right, not a moral
right. That economic right is freely transferable under Egyptian law and was, in
this case, transferred by Plaintiff to Jaber. Any Egyptian moral right Plaintiff
retained is not enforceable in the United States and did not limit or modify
Plaintiffs complete worldwide transfer under the 2002 Agreement of all exclusive
economic rights in Khosara. In arguing otherwise, Plaintiff misrepresents the law
and attempts to eviscerate the fundamental distinction between moral rights (not
enforceable in the U.S.) and freely transferable economic rights, which include the
right to create and prevent derivative works. Plaintiffs interpretation of the law
would contradict plain statutory and Congressional authority to the contrary and, if
followed by this Court, would open this and other U.S. courts to a flood of moral
rights claims not recognized in this country.

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Plaintiff also crams his Opening Brief with a host of other non-appealable
and illegitimate grievances, including an entirely baseless personal attack on the
credibility of the district judge. These misguided tactics transparently are designed
to conceal the fact that Plaintiff has no legitimate grievance for appeal, and none of
Plaintiffs additional arguments has any merit. 1
For all of these reasons, the Court should deny Plaintiffs appeal in its
entirety and affirm the District Courts Judgment dismissing Plaintiffs claims.
JURISDICTIONAL STATEMENT
The District Court had jurisdiction pursuant to 28 U.S.C. 1331 and 1338.
Plaintiff timely filed a notice of appeal from the Judgment entered February 5,
2016.

In particular: (1) Plaintiff failed to preserve any claim that he is a beneficial


owner of any rights in Khosara, and in any event failed to present any evidence of
such ownership below; (2) numerous issues prevent entry of judgment in favor of
Plaintiff on his motion for judgment as a matter of law on liability (Plaintiffs
JMOL); (3) the District Courts in limine order barring introduction of Khosara
sound recordings was not an abuse of discretion; and (4) no basis for remand
exists, and even assuming there were, no rare and extraordinary circumstances
exist to justify reassignment to another district judge.

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STATEMENT OF ISSUES PRESENTED FOR REVIEW
1.

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.

Did Plaintiff fail to preserve his argument that he retained standing as

an alleged beneficial owner of rights in Khosara; and, if not, did Plaintiff


nonetheless fail to establish such standing?
5.

Should the Court reject Plaintiffs request to rule prematurely on his

JMOL; and, if not, do multiple issues preclude entry of judgment for Plaintiff?
6.

Did the District Court properly exercise its discretion in excluding

sound recordings of Khosara as evidence at trial?

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7.

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

Plaintiff alleges that, in or around 1957, Baligh Hamdy (Hamdy), an


Egyptian composer, composed the music (not the lyrics) to Khosara. ER1458 3, 8;
ER1101, 5(a). Khosara is transcribed in a two-page lead sheet. ER906-907;
see also ER147, ER172 (Marcus4) at 11:6-14, 36:10-19; ER1193 at 245:1-24.
Hamdy died in 1993. ER1101, 5(d). Plaintiff, a resident of Egypt, is one
of Hamdys numerous heirs. Id., 5(b). Prior to 1995, Plaintiff and Hamdys other
heirs inherited whatever rights Hamdy had in Khosara. Plaintiff has never claimed
to own any rights in any sound recording of Khosara. ER1176-78.

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.

ER means the Excerpts of Record filed by Plaintiff. SER means the


Supplemental Excerpts of Record filed herewith.
3

Trial testimony is identified by witness for the Courts reference.

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B.

Plaintiff Licenses Khosara to Sout el Phan, Which Then Licenses


Khosara to EMI

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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C.

Big Pimpin and Defendants Right to Use Khosara

In 1999, highly acclaimed music producer Tim Mosley (p/k/a Timbaland)


collaborated with Shawn Carter (p/k/a Jay Z) to create the song Big Pimpin.
ER263 (Mosley) at 16:15-17. In creating the music for Big Pimpin, Mosley took
a pre-existing beat (i.e., instrumental track) he had created, and added a short
sample from an unidentified sound recording on a CD he believed contained public
domain or otherwise freely usable Middle Eastern music. ER263-264, ER267,
ER270 (id.) at 16:18-17:14, 20:6-12, 23:10-15.
Approximately one year later, Mosley learned that the sample he used came
from a sound recording of Khosara (the ARC Recording), later determined to be
owned by non-party ARC Music (ARC). ER289 (Mosley) at 42:11-22; ER281
at 34:4-6; ER317-318 at 10:24-11-17; ER1173-74 at 6:23-7:1; ER838-842. In late
2000, EMI asserted that Big Pimpin contained an unauthorized use of Khosara, to
which EMI claimed to own the exclusive rights through the 1995 SEP-EMI
Agreement. 6
With no notice or knowledge of any claim by Plaintiff, 7 Mosley agreed to
pay EMI for use of Khosara, pursuant to an agreement dated as of March 30, 2001.

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.

See ER293-294 (Mosley).

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ER843-852 (the EMI-Mosley Agreement). EMI represented and warranted
therein, inter alia: (1) that it controlled the copyright in Khosara throughout the
world (excluding Egypt), and (2) that it had no reason to believe that any third
party could assert rights in Khosara. ER847-848, 4. In return for a payment of
$100,000, EMI consented to Mosleys exploitation of Khosara in Big Pimpin.
ER844, 1; ER847, 4.
D.

Exploitation of Big Pimpin

Defendant UMG Recordings, Inc. released the initial recording of Big


Pimpin on December 28, 1999, on the Jay Z album Vol. 3 The Life and Times
of S. Carter. ER1101, 5(e). 8 After the 2001 EMI-Mosley Agreement,
Defendants released additional works containing Big Pimpin:
Collision Course, an album of mash-ups combining songs
performed by Jay Z with those of the well-known band Linkin Park,
released by an affiliate of Defendant Warner Music, Inc. on
November 29, 2004, along with a 30 minute MTV documentary. One
of those mash-ups, entitled Big Pimpin/Papercut, mixes Big Pimpin
with Linkin Parks Papercut. ER632-634 (Farrell); ER643 (Ratner);
ER1102, 5(i).
Fade to Black, a documentary film released theatrically in or about
November 2004 by Defendant Paramount Pictures Corporation, which

The Big Pimpin musical composition is administered in part by Defendant EMI


Blackwood Music. ER672-674 (Sandsmark); ER84 at 58:14-16.

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included approximately two minutes of a performance of Big Pimpin.
The film subsequently was released on DVD in or about April 2005.
ER696-698 (McNicoll); ER1102, 5(g).
Unplugged, an album of acoustic performances by Jay Z, one of
which is Big Pimpin, released on or about December 18, 2001.
ER1102, 5(f).
Vol. IThe Hits Collection, a greatest hits album containing the
original version of Big Pimpin, released on or about November 22,
2010. ER1102, 5(k).
All of the exploitation at issue in this action occurred outside of Egypt.
E.

Defendants Reliance on Plaintiffs Inaction in the Face of the


EMI-Mosley Agreement

Plaintiff became aware of Big Pimpin and its alleged infringement of


Khosara no later than December 2000. ER1394. Thereafter, on March 2, 2001,
David Braun (Braun), an attorney acting on Plaintiffs behalf, 9 contacted EMI,
inquiring about EMIs right to exploit Khosara and specifically about its alleged
use in Big Pimpin. SER1650-52. EMI responded, in a series of letters and a
telephone call, confirming that it was the exclusive publisher of the [Khosara]
composition for the world, excluding Egypt, and enclosing documentation

See SER1894-95; SER2294-95, 30; SER2203-04, 25.

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reflecting that fact. SER1886-90; ER1011-12; SER1891-93; SER1894-95;
SER1896; ER767-768 at 13:21-14:24. 10
After EMIs last communication with Braun, on around April 19, 2001, EMI
never heard from [Braun] again.11 Braun never communicated in any way with
EMI, and never filed a claim. ER384-385, 393-394 (Ancliff); ER768-771 (Braun).
After the April 2001 communications and prior to filing this lawsuit in August
2007, neither Plaintiff nor Braun ever alleged copyright infringement or objected
to the creation or distribution of Big Pimpin. ER769-770 (Braun); ER753-754
(Fahmy) at 242:15-243:13, 244:17-24; ER427-428 (Ancliff). Therefore, EMI
assumed [Plaintiff] was satisfied with the answers I gave him[.] ER385
(Ancliff).
At the time of the foregoing communications, the EMI-Mosley Agreement
(though dated as of March 30, 2001) was not yet finalized; it was not final until
July 2001. ER596 (Cheesley); ER388, ER425-427 (Ancliff); SER1901. Braun

Plaintiff contends that one of those documents, a certificate from an Egyptian


authors and publishers association (SACERAU or SASIRO), demonstrates an
implied limitation on the economic rights granted to EMI (like the limitation he
claims must be read into the 2002 Agreement). See Op.Br., pp. 16-17. He is
wrong. The language relied on by Plaintiff merely referenced the separate moral
rights enforceable in Egypt, which is not surprising since the SACERAU
certificate only dealt with ownership of rights in Egypt. And the EMI-Mosley
Agreement excluded rights in Egypt, so this language was irrelevant to EMIs
chain of title. See ER358-362 (Ancliff); ER429-430, 453 (Farhat).
10

11

All bold, italic emphases herein are added.

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was aware not only of EMIs assertion of its rights regarding Khosara and Big
Pimpin, but also that an agreement between EMI and Mosley was being
negotiated; yet he did nothing. SER1894-95.
The parties to the EMI-Mosley Agreement relied on Plaintiffs silence in
finalizing that agreement. ER386, ER393-394 (Ancliff); ER628 (Cheesley).
Thereafter, all of the other Defendants relied on the rights obtained in the EMIMosley Agreement (and the various representations and warranties made based
thereupon) in exploiting Big Pimpin. ER196 (Carter); ER279-282 (Mosley);
ER513-514 (Hamilton/Warner); ER635-637 (Farrell/Linkin Park); ER644, 647648 (Ratner/MTV); ER654, 658-659 (Trotman/Universal); ER676-677, 679
(Sandsmark/EMI Blackwood); ER702-705 (McNicoll/Paramount).
F.

Having Been Assured that EMI Had the Right to License


Khosara For Use In Big Pimpin, in 2002 Plaintiff Transfers All of
His Economic Rights in Khosara

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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el Phans successor 12, which superseded and replaced the 1995 Fahmy-SEP
Agreement. See ER994-1000 (the 2002 Agreement).
In return for a lump-sum payment of 115,000 Egyptian pounds, the 2002
Agreement unconditionally assigned all of Plaintiffs remaining exclusive
economic rights in Khosara (and other Hamdy compositions) to Jaber. The 2002
Agreement was a complete buy-out of Plaintiffs rights, and terminated any
existing financial obligations from either Sout el Phan or Alam el Phan to Plaintiff.
Id.; ER753 (Fahmy) at 210:6-16. Among other things, the 2002 Agreement:
(1) provided that, for the works at issue (including Khosara), Jaber
and his successors became solely the owners of the financial
usage rights (i.e., economic rights) under Egypts 2002 Egyptian
Copyright Law;
(2) granted to Jaber, or whoever he selects, the right to print, publish
and use the music of the [listed] songs by all means;
(3) provided that Jaber and his successor bec[a]me the sole
publisher of the melodies of these songs in all the current
publishing means and in any way he deems, and that Jaber had

In or around 2001, control of most of Sout el Phans musical catalog passed to


another Egyptian entity known as Alam el Phan. ER721 (Fahmy) at 197:21198:14; ER373-374 (Ancliff); SER1899-1900.

12

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the right to transfer or otherwise dispose of all of the rights stated
in the agreement; and
(4) provided that Plaintiff also had fully assign[ed] to Jaber any
other contracts and/or rights pertaining to [these] pieces of
music[,] constituting a final quittance of all amounts
otherwise due him from Sout el Phan.
ER998.
As the District Court properly held, the effect of the 2002 Agreement was to
transfer all of Plaintiffs economic rights in Khosara including the freely
transferable right to create or prevent derivative works (i.e., adaptations) to
Jaber. Plaintiff sold these rights in exchange for a lump sum payment, with no
continuing royalty or other financial obligations of any kind required from Jaber.
ER753 (Fahmy) at 210:6-16; ER746 (Loutfi) at 343:03-343:07. Thus, after the
2002 Agreement, Plaintiff had no legal or beneficial interest in Khosara.
II.

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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contained three causes of action for copyright infringement under the U.S.
Copyright Act relating to Big Pimpin, Big Pimpin/Papercut, and Fade to Black,
respectively; as well as a state law claim for unfair business practices, which was
dismissed with prejudice in March 2008. See SER2306. Plaintiff does not appeal
that dismissal.
B.

The District Court Limits Plaintiffs Claims to Three Years


Before the Filing of the Complaint

On December 9, 2011, the District Court held, based on the statute of


limitations, that Plaintiff was barred from claiming any infringement prior to
August 31, 2004 (i.e., three years before he filed his Complaint, and after the 2002
Agreement). ER1396-1402. Plaintiff does not challenge that order. See Op.Br.,
pp. 21-22, 38-55.
C.

The District Court Grants Defendants Summary Judgment on


Laches, But Then Is Compelled To Reconsider Post-Petrella

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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However, on May 19, 2014, the Supreme Court held that laches cannot be
invoked to preclude copyright claims filed within the limitations period. See
Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967 (2014). Thereafter,
the District Court granted Plaintiffs motion for reconsideration and vacated its
summary judgment orders on laches to the extent they held Plaintiffs remaining
claims to be barred, but left the factual findings of these orders undisturbed.
ER1335-1344.
D.

The District Courts Pre-Trial Rulings

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.

13

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E.

The District Court Grants Defendants JMOL, Finding that


Plaintiff Lacked Standing

Trial commenced on October 13, 2015. Both parties presented witnesses


and documentary evidence, including the testimony of two experts who explained
Egyptian law. Defendants expert testified live at trial, while Plaintiff relied on his
experts deposition testimony. See ER429-485 (Farhat, Defendants expert 14);
ER723-733, ER740-748 (Loutfi, Plaintiffs expert).
At the close of evidence, Defendants moved for judgment as a matter of law
on the ground that Plaintiff lacked standing as a result of his transfer of all
economic rights in Khosara to Jaber in the 2002 Agreement. See ER776;
SER1902-25. Plaintiff also moved for judgment as a matter of law, on the merits
of his infringement claims. See ER785; ER1034-63.
On October 21, 2015, prior to closing arguments, the District Court granted
Defendants JMOL, finding that the 2002 Agreement was an assignment to Jaber
of all of the economic rights in the Khosara musical composition, including the
right to create and prevent derivative works (i.e., adaptations). The District
Court rejected Plaintiffs attempt to obtain redress for purely moral rights, holding
that, because plaintiff may only pursue a claim in this court based on infringement

14 See

ER430-434 (testimony regarding Farhats expertise in Egyptian and


Lebanese copyright law). The copyright laws of Egypt and Lebanon are the same.
ER740-41 (Loutfi); ER432 (Farhat).
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of economic rights, he is not the legal or beneficial owner of an exclusive right
under a copyright for purposes of this suit. Accordingly, plaintiff does not have
standing to bring the instant suit for copyright infringement. ER26. Because the
District Court found that Plaintiff lacked standing, it decline[d] to reach
Plaintiffs JMOL. Id.
On February 5, 2016, the District Court entered Judgment in favor of
Defendants, dismissing Plaintiffs claims on the merits in their entirety with
prejudice. ER7. On February 9, 2016, Plaintiff filed his Notice of Appeal. ER2.
SUMMARY OF ARGUMENT
Plaintiffs challenge to the District Courts dismissal of his case rests
entirely on the demonstrably false premise that his copyright claims survive his full
transfer of economic rights in the 2002 Agreement, simply because Plaintiff
purportedly retained moral rights not enforceable in the United States. This
argument fails entirely. First, Plaintiffs moral rights are neither recognized nor
enforceable in the United States. Thus, they cannot give rise to an actionable claim
in this country. Second, economic rights, including the right to create and prevent
derivative works (and to sue for violation of that derivative work right), are
entirely separate from moral rights and are freely transferable under applicable
Egyptian law. Third, Plaintiff unconditionally transferred his derivative work
rights (along with all other economic rights) to Jaber in the 2002 Agreement, thus
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divesting himself of the right to sue for any purported violation of those rights in
Big Pimpin. Accordingly, neither Plaintiffs appeal from the District Courts
Judgment, nor any of the other non-appealable and illegitimate grievances he
makes, has any merit:
Issues 1 & 2: After the 2002 Agreement, Plaintiff Had No Standing
Review of the dismissal of Plaintiffs claims boils down to two simple
questions: (1) Is the right to create and prevent derivative works the only right
under the U.S. Copyright Act on which Plaintiff bases his claims transferable
under Egyptian law? (2) Did Plaintiff unconditionally transfer that right in the
2002 Agreement to a third party? Because the answer to both of those questions
unquestionably is yes, Plaintiff lacks standing to pursue his copyright infringement
claims.
Interpretation of the 2002 Agreement is governed by Egyptian Law No. 82
of 2002 (the 2002 Egyptian Copyright Law). ER744 (Loutfi). Articles 147 and
149 the main economic rights provisions in the Egyptian copyright law
explicitly permit the owner of a copyright to make a complete transfer of all or
some of the economic rights in a copyright. ER922-923 at Articles 147, 149;
ER743 (Loutfi); ER446-448 (Farhat). One of those specified economic rights is
the right to create derivative works or adaptations. Id.; see also ER742 (Loutfi)

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at 111:04-05. Accordingly, there can be no dispute that the derivative work right is
freely transferable under Egyptian law.
The 2002 Agreement clearly transferred all economic rights in Khosara,
including the right to create derivative works, stating, inter alia, that [Jaber] or his
successors are solely the owners of the financial usage rights stated in the
[Egyptian] Law No. 82 FOR THE YEAR 2002, for the pieces of music listed,
including Khosara, throughout the world. ER998-1000. That phrase clearly
means and incorporates all of the economic rights provided for in Article 147,
without limitation. See ER440, 448, 454-455, 459 (Farhat); ER740, 742 (Loutfi).
Because the right to create derivative works is an economic right under
Egyptian law, Plaintiffs assignment of all economic rights in the 2002 Agreement
necessarily included the transfer of the assignable economic right to create and
prevent derivative works. See ER459, 464 (Farhat); ER745 (Loutfi).
Therefore, after the 2002 Agreement, Plaintiff no longer owned any of the
economic rights in Khosara, including the derivative work right at issue here, and
he thus lacked standing to assert his claims. See Silvers v. Sony Pictures Entmt,
Inc., 402 F.3d 881, 883, 889-90 (9th Cir. 2005) (en banc) (only a party with an
ownership interest in an exclusive right under the Copyright Act has standing to
sue for copyright infringement).

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Issue 3: Plaintiff Seeks to Enforce Unenforceable Moral Rights in the U.S.
Under Egyptian law, an author retains certain so-called moral rights,
which are entirely separate and independent from the economic rights discussed
above. See ER921-922 at Articles 143-145; ER442, 444 (Farhat). Plaintiffs
counsel admitted that, in this action under U.S. copyright law, Plaintiff sought to
enforce his Egyptian moral rights. See ER88, 92. But, other than exceptions for
certain classes of visual works not applicable here, moral rights are not
enforceable in the United States. Accordingly, even where a foreign author has
cognizable rights in his or her home country, such rights do not extend to the
United States.
To circumvent this, Plaintiff attempts to smuggle his claim for moral rights
into this action by claiming that the moral rights granted under Egyptian law must
be read into the 2002 Agreement as an implied limitation of its complete
assignment of economic rights, based on a tortured misreading of Norfolk & W.
Ry. Co. v. Am. Train Dispatchers Assn, 499 U.S. 117, 130 (1991). This
argument fails for at least three reasons.
First, under Egyptian copyright law, moral rights and economic rights are
two separate and independent types of rights. In Egypt, an authors economic
rights are fully transferable, and there is nothing in Egyptian copyright law that
imposes any restriction on the transferability of those economic rights. Plaintiff

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relies solely on the Egyptian moral right to prevent any modification considered
by the author as distortion or mutilation of the work. ER921 at Article 143. But
this moral right in no way limits the full transferability of all economic rights.
ER740-744 (Loutfi). Instead, it is a limited and wholly separate moral right to
object in Egypt only to certain exploitations in Egypt. ER441-442, 479
(Farhat); compare ER921-922 (Articles 143-145) with ER922-923 (Articles 147150). Thus, contrary to Plaintiffs repeated argument otherwise, this moral right of
integrity is not the same as the economic right to create and prevent derivative
works, and Plaintiffs unconditional and explicit grant of all economic rights,
including that derivative work right, to Jaber remains valid, and is unaffected by
this separate narrow moral right. 3 Melville B. & David Nimmer, NIMMER ON
COPYRIGHT (Rev. ed.) (Nimmer) 8D.01[A] at 8D-3. As a result, reading
Egypts copyright laws into the 2002 Agreement does not, as Plaintiff argues,
create any implied contractual limitation on Plaintiffs transfer of the economic
right to create derivative works.
Second, even assuming Egyptian copyright law were read into the 2002
Agreement, moral rights may be exercised only in a jurisdiction where they have
been granted by law. ER441-442, 479-480 (Farhat). U.S. law does not recognize
moral rights. Thus, any rights Plaintiff retained under Article 143 of the Egyptian
Copyright Law must be enforced in Egypt, not in U.S. courts. Indeed, the 2002

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Agreement was to be performed throughout the world, including the U.S., and thus,
assuming any law were to be read into the 2002 Agreement, it must include the
U.S.s refusal to recognize moral rights. Norfolk, 499 U.S. at 130.
Third, even assuming Egypts moral rights were read into the 2002
Agreement, they do not operate as a contractual limitation giving rise to a claim for
monetary damages. Instead, an authors remedy in a moral rights jurisdiction such
as Egypt is an injunction enjoining uses in that jurisdiction only. ER442, 446,
478-479 (Farhat). Such a remedy has no bearing on Plaintiffs claims, as no
exploitation in Egypt is at issue.
Issue 4: Plaintiff Cannot Assert Standing Based on Beneficial Ownership
Plaintiff argues, alternatively, that he has standing as a beneficial owner
because he is the heir of [Khosaras] author and continues to own the right to
receive royalties from its exploitation. Op.Br., pp. 54-55. Plaintiff failed to
preserve this argument for appeal, and [i]ssues raised for the first time on appeal
usually are not considered. Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887
(9th Cir. 2002).
In any event, this argument fails on its merits for at least two reasons. First,
the 2002 Agreement was not granted in exchange for the payment of royalties, as
is required. See Wallert v. Atlan, 141 F. Supp. 3d 258, 278 (S.D.N.Y. 2015). In
fact, after the 2002 Agreement, Plaintiff had no right to receive any royalties from

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Jaber/Alam el Phan for the exploitation of Khosara (and he presented no evidence
to the contrary). Second, Plaintiffs mere retention of a continuing right to certain
songwriter royalties for public performances or mechanical reproduction of
Khosara is an insufficient basis for standing where, as here, the particular right
allegedly infringed is the exclusive right to prepare derivative works. Roberts v.
Gordy, 2016 U.S. Dist. LEXIS 47694, at *66-67 & n.39 (S.D. Fla. Apr. 8, 2016);
ER1000.
Issue 5: Plaintiff is Not Entitled to Judgment as a Matter of Law
First, the Court should decline to decide Plaintiffs JMOL, which the District
Court decline[d] to reach in light of its entry of Judgment for Defendants. ER26.
Plaintiff offers no reason to deviate from the general rule precluding review of
matters not ruled on below. Singleton v. Wulff, 428 U.S. 106, 120 (1976).
Second, even if considered, there are numerous issues that either preclude
judgment for Plaintiff or provide alternate grounds to affirm the judgment for
Defendants below:
(1) Because Plaintiff assigned away all of his copyright interests in Khosara,
he failed to prove any ownership of Khosara.
(2) Defendants use of Khosara in Big Pimpin was authorized by an express
license obtained by Mosley in the 2001 EMI-Mosley Agreement. See ER967-993.

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(3) Sout el Phan/Alam el Phan also granted, at minimum, an implied license
for the use of Khosara in Big Pimpin.
(4) Plaintiffs claim is barred by equitable estoppel, based on Defendants
reasonable reliance on Plaintiffs lengthy silence after EMI assured Plaintiff that
EMI had the right to publish Khosara and license Big Pimpin.
(5) There was no substantial similarity between any original, protectable
elements of Khosara and Big Pimpin.
(6) Any copying in Big Pimpin from Khosara was de minimis.
(7) Any use of Khosara in Big Pimpin was transformative and constituted
fair use.
Issue 6: The District Courts In Limine Ruling Was Not an Abuse of
Discretion
Plaintiff cannot show that the District Court abused its discretion in
excluding, under Fed. R. Evid. 403, sound recordings of Khosara, or that its ruling
was manifestly erroneous. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42
(1997). The District Courts conclusion that admission of those sound recordings
would cause confusion was correct, properly relied on directly applicable
authority, and should be afforded considerable deference. McEuin v. Crown
Equip. Corp., 328 F.3d 1028, 1035 (9th Cir. 2003) (citations and quotations
omitted).

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Issue 7: No Rare or Extraordinary Circumstances Justify Reassignment
Finally, Plaintiff personally attacks the credibility and competence of the
district judge, arguing that the case must be reassigned if remanded. Plaintiffs
insulting and baseless argument fails to present any rare and extraordinary
circumstances necessary to justify such relief. To the contrary, the District Court
provided Plaintiff every opportunity to prove his case, and in no way demonstrated
any bias or inappropriate conduct.
STANDARDS OF REVIEW
Issues 1-4 (Grant of Defendants JMOL): The District Courts grant of
judgment as a matter of law, its interpretation of foreign law, and its interpretation
of the 2002 Agreement generally are reviewed de novo. Torres v. City of L.A.,
548 F.3d 1197, 1205-06 (9th Cir. 2008) (JMOL); Kaho v. Ilchert, 765 F.2d 877,
882 (9th Cir. 1985) (foreign law); Shaw v. City of Sacramento, 250 F.3d 1289,
1293 (9th Cir. 2001) (contract interpretation based on four corners of the
agreement).15
Plaintiff also must demonstrate that he preserved for appeal his argument
regarding beneficial ownership. McMillan v. U.S., 112 F.3d 1040, 1047 (9th Cir.

When a district court uses extrinsic evidence to interpret a contract, we review


the findings of fact for clear error and the principles of law applied to those facts
de novo. DP Aviation v. Smiths Indus. Aero. & Def. Sys., 268 F.3d 829, 836 (9th
Cir. 2001).
15

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1997) (absent special circumstances, this Court will not consider arguments that
were not raised in the trial court).
Issue 5 (Plaintiffs JMOL): If the District Court had denied Plaintiffs
JMOL, this Court would review such denial de novo, while construing all evidence
in the light most favorable to the non-moving parties (here, Defendants), and
would reverse only where such evidence allows only one reasonable conclusion in
favor of granting the motion. Fed. R. Civ. P. 50; Martin v. Cal. Dept of Veterans
Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009); Janes, 279 F.3d at 886.
Issue 6 (In Limine Ruling Barring Prejudicial Sound Recordings): In
order to reverse an evidentiary ruling, this Court must conclude both that the
District Court abused its discretion and that the error was prejudicial i.e., that it
tainted the verdict. McEuin, 328 F.3d at 1032; see also id. at 1035 ([A] district
courts decision to exclude or admit evidence under FRE 403 is reviewed with
considerable deference.) (citation and quotations omitted); Joiner, 522 U.S. at
141-42.
Issue 7 (Reassignment): Absent a showing of personal bias which
Plaintiff does not allege and cannot establish a case will be reassigned only under
rare and extraordinary circumstances. Mustang Mktg. v. Chevron Prods. Co.,
406 F.3d 600, 610 (9th Cir. 2005).

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ARGUMENT
I.

THE COURT SHOULD AFFIRM THE DISTRICT COURTS


DISMISSAL OF PLAINTIFFS CLAIMS FOR LACK OF STANDING
Plaintiff argues that the District Court erred in granting Defendants JMOL

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 Transferred All of His Economic Rights; and Any


Moral Rights Retained are Not Cognizable in U.S. Courts

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.

Applicable Standards of Law

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 U.S. is determined under U.S. law. Plaintiff concedes as much. See Op.Br.,
pp. 36, 38.
Under the Copyright Act, only [t]he legal or beneficial owner of an
exclusive right under a copyright is entitled to institute an action for any
infringement of that particular right committed while he or she is the owner of it.
17 U.S.C. 501(b). Section 106 of the Copyright Act lists the exclusive rights
cognizable in an action under the Copyright Act (referred to by the District Court
and herein as the economic rights in a copyright). 17 U.S.C. 106.16 One of the
exclusive economic rights is the right to prepare derivative works based upon the
copyrighted work[.] 17 U.S.C. 106(2). This is the only right on which Plaintiff
bases his claims. See Op.Br., pp. 33-34, 36.
Because economic rights, including the right to create derivative works, are
transferable under Egyptian law, and because the 2002 Agreement transferred that
right, Plaintiff owns no exclusive right under the U.S. Copyright Act and thus lacks
standing to sue.

See also Nimmer 8D.01[A] at 8D-3 (describing moral rights as non-economic


rights).
16

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2.

In the 2002 Agreement, Plaintiff Transferred the Right to


Create Derivative Works (Including Big Pimpin)

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.

The Right to Create Derivative Works is a Freely


Transferable Economic Right Under Egyptian Law

Economic rights are governed by Article 147 of the 2002 Egyptian


Copyright Law (Article 147). ER446 (Farhat17); ER741 (Loutfi) at 254:14-17.18
Article 147 states:
The author and his universal successor shall have the
exclusive right to authorize or prevent any form of
exploitation of his work, particularly through
reproduction, broadcasting, rebroadcasting, public
performance, public communication, translation,
adaptation, rental, lending or making the work available
to the public in any manner.
ER922. 19 Thus, one of the economic rights stated in the 2002 Egyptian Copyright
Law is the right to create or prevent derivative works (i.e., adaptations).
17

See generally SER1655-1720 (2002 Egyptian Copyright Law).

At the time of the 2002 Agreement, the 2002 Egyptian Copyright Law was the
operative law. ER744 (Loutfi) at 290:12-291:13.

18

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Egyptian law permits the owner of a copyright to make a complete transfer
of either all or some of his economic rights. ER922 at Article 149. Plaintiffs
expert conceded that, under Egyptian law, a copyright holder can transfer some
economic rights, or all of them, with no exclusion. ER743 (Loutfi) at 247:05-10;
see also ER728 (id.) at 17:8-19, ER741 (id.) at 255:22-24; accord ER447-448
(Farhat) at 50:24-51:18. Thus, the right to create or prevent derivative works is a
freely transferable economic right.20
This fact is confirmed by Egypts adoption of the Berne Convention, which
was fully incorporated into Egyptian law. See ER743 (Loutfi) at 76:23-77:25;
ER450 (Farhat) at 53:20-54:9. Among the economic rights provided under the
Berne Convention is the exclusive right of authorizing adaptations, arrangements
and other alterations. Economic rights, including derivative work rights, are
transferable and distinct from moral rights under the Berne Convention. ER743744 (Loutfi) at 360:22-361:08; see also SER1596, 1600 (Berne Convention
Articles 6bis and 12).

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).
19

The District Court correctly rejected Plaintiffs experts internally inconsistent


and plainly incorrect conclusion to the contrary (ER728-730), which is
contradicted by the plain meaning of the 2002 Egyptian Copyright Law, the
testimony of Mr. Farhat, and even his own testimony, as explained herein.

20

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Thus, under Egyptian law, including the Egyptian 2002 Copyright Law and
the Berne Convention, the right to create and prevent derivative works such as Big
Pimpin is a freely transferable economic right.
b.

In the 2002 Agreement, Plaintiff Transferred All


Economic Rights, Including Derivative Work Rights

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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successors are solely the owners of the financial usage
rights stated in the [Egyptian] Law No. 82 FOR THE
YEAR 2002, for the pieces of music listed hereinafter in
the Arab Republic of Egypt and the whole world, and
the use includes all the usage means and methods
during the whole legal protection period specified by the
law.
[Jaber] and his successor become the sole publisher of
the melodies of these songs in all the current publishing
means and in any way he deems whether it was direct or
indirect. [Jaber] also has the right to transfer all these
rights or some of them or dispose them to another
company or institution using any trademark he selects.
I did also fully assign to Mr. Mohsen Mohammad Jaber
all our rights clarified in the contract 2/12/1968 between
Sout El Phan Company and the musician Mr. Baleegh
Hamdi, or any other contracts and/or rights pertaining
to those pieces of music. As such, signing on this
document is considered as a final quittance from any of
our dues from Sout El Phan ...
...
[Plaintiff] received the amount of 115,000 (only one
hundred fifteen thousand Egyptian Pounds) for this
waiver and declaration while maintaining our rights in
respect of the public performance and mechanical
printing.
ER998-1000.
As the District Court correctly held, the phrase financial usage rights stated
in the Law No. 82 FOR THE YEAR 2002 in the 2002 Agreement clearly means
and incorporates all of the economic rights provided for in Article 147 the
economic rights provision in the Egyptian copyright law. See ER448 (Farhat) at

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51:24-25 (under Egyptian law, the terms economic rights and financial rights
are interchangeable); ER440 (id.) at 43:9-18; ER740 (Loutfi) at 135:15-17; ER742
(id.) at 302:10-303:08 (Article 147 lists financial usage rights).
Under the 2002 Agreement, Fahmy agreed to transfer all of his financial
usage rights (i.e., economic rights) in Khosara to Jaber without any limitation.
See ER454-455 (Farhat) at 57:1-58:25 (no restrictions whatsoever in the
assignment of rights granted by the 2002 Agreement); ER459 (id.) at 62:10-19.
Thus, because (as discussed above) the right to create and prevent derivative
works is one of the economic rights under the 2002 Egyptian Copyright Law,
Fahmys assignment of all economic rights in the 2002 Agreement necessarily
included the transfer of that right. See also ER459 (Farhat) at 62:20-24 (transfer in
2002 Agreement included the right to create adaptations or samples); ER464 (id.)
at 67:4-17 (after the 2002 Agreement, Plaintiff retained no economic rights in
Khosara).
Indeed, Plaintiffs own expert testified that the purpose of the 2002
Agreement was to transfer the rights in Khosara for all means, usages, in any way
that Mr. [J]aber deems necessary. ER745 (Loutfi) at 339:15-18. Thus, when
asked directly, In your view, does the plain language allow the defendants to use
Khosara in Big Pimpin?, Plaintiffs expert responded, Yes. Plaintiffs

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counsel, obviously displeased with that response, interjected, Im sorry? But
Mr. Loutfi repeated, Yes. ER745 at 37:25-38:09.
Accordingly, after the 2002 Agreement, Plaintiff no longer was the owner of
any of the economic rights i.e., financial usage rights under the 2002 Egyptian
Copyright Law, including the right to create or prevent derivative works.
Therefore, he lacked standing to assert his claims and the District Court properly
dismissed them. See Silvers, 402 F.3d at 883, 889-90 (standing requires ownership
interest in one of the exclusive rights enumerated by the Copyright Act); Walker v.
Univ. Books, Inc., 602 F.2d 859, 862 (9th Cir. 1979) ([A]n assignor of a
copyright has no standing to sue for infringements which occur subsequent to the
effective date of the assignment.).22

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,
22

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3.

Plaintiffs Primary Argument is a Disguised Moral Rights


Claim Not Cognizable in the United States

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.

Moral Rights Are Not Enforceable in the United States

Except for a limited universe of works of visual art, United States


copyright law generally does not recognize moral rights[,] including the moral
right of integrity claimed by Plaintiff. 24 Garcia v. Google, Inc., 786 F.3d 733,

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
24

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746 (9th Cir. 2015) (en banc) (citations omitted); accord Cheffins v. Stewart,
825 F.3d 588, 598-599 (9th Cir. 2016) (McKeown, J., concurring); Friedman v.
Zimmer, 2015 U.S. Dist. LEXIS 143941, at *16 (C.D. Cal. July 10, 2015).
This is a settled matter of federal legislation and public policy. When the
U.S. joined the Berne Convention, Congress expressly legislated that moral rights
would not be granted to foreign authors via the Berne Convention. SER1626-34
(Berne Convention Implementation Act, Pub.L. No. 100-568, 102 Stat. 2853
(1988)); see also 17 U.S.C. 104(c); Carter v. Helmsley-Spear, Inc., 71 F.3d 77,
83 (2d Cir. 1995). Accordingly, while a foreign author may have cognizable moral
rights in his or her home country, such rights do not extend to the United States.
Thus, the District Court correctly held and Plaintiff does not seriously
dispute that his so-called moral rights are not separately enforceable in the
United States. See ER18.
b.

All Plaintiff Retained After the 2002 Agreement Was the


Right to Enforce Moral Rights in Egypt for Exploitations
in Egypt

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

moral rights assertable in jurisdictions that recognize them. See 3 Nimmer


8D.01[A] at 8D-3; SER1596 (Berne Convention Article 6bis); ER445 (Farhat) at
48:14-19.
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the 2002 Agreement an unexpressed contractual limitation on the transfer of
economic rights therein.25 There is no such restriction to be read into the 2002
Agreement.
Under Egyptian law, an author holds both moral and economic rights in
his/her work. Separate from the economic rights discussed above, Article 143 of
the 2002 Egyptian Copyright Law (Article 143) and related provisions govern
treatment of moral rights under Egyptian law. ER921-922 at Articles 143-145;
ER444 (Farhat). The moral right Plaintiff now attempts to assert is the limited
right to prevent any modification considered by the author as distortion or
mutilation of the work, commonly referred to as the moral right of integrity.
ER921 at Article 143. Plaintiffs expert conceded that, under Egyptian law, moral
rights and economic rights are two different types of rights, and that an authors
economic rights are transferable even if moral rights are not. ER740-741, 743-744
(Loutfi); ER442 (Farhat) at 45:15-21 (economic rights and moral rights are
completely separate, independent).

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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c.

Plaintiffs Attempt to Smuggle Moral Rights into U.S.


Courts Fails

Despite this clear distinction between transferable economic rights and


Egyptian moral rights, Plaintiff nonetheless asserts that Egyptian moral rights
somehow limit the unconditional assignment of economic rights in the 2002
Agreement. The sole proffered basis for this profound re-writing of the law is a
tortured interpretation of the maxim cited in Norfolk & W. Ry. Co. v. Am. Train
Dispatchers Assn, 499 U.S. 117, 130 (1991), that [l]aws which subsist at the
time and place of the making of a contract, and where it is to be performed, enter
into and form a part of it, as fully as if they had been expressly referred to or
incorporated into its terms. Op.Br., p. 39. According to Plaintiff, this means that
the moral rights afforded to an author and his heirs under Egyptian law in Egypt
somehow create implied restrictions on the transfer of economic rights in the 2002
Agreement, giving Plaintiff an unexpressed worldwide right, enforceable in the
United States, to block any change to Khosara Khosara that he deems a
mutilation or distortion. Op.Br., p. 41.
This is a gross mischaracterization of the doctrine stated in Norfolk and
would eviscerate the United States rejection of the enforceability of foreign moral
rights. Plaintiffs argument fails for at least three reasons:

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First, because economic rights are distinct from and independent of moral
rights (Kelley, 635 F.3d at 296), and are freely transferable, the very notion of an
implied restriction on the full assignment of Plaintiffs economic copyright
interests made in the 2002 Agreement is incoherent. See Carter, 71 F.3d at 81
(moral rights exist independently of an artists copyright in his or her work),
citing Nimmer 8D.01[A] at 8D-3 n.2 (This notion of independence is, of course,
basic to the whole concept of moral rights.) (citation and quotations omitted); see
also id. at 8D-3 (moral rights and economic rights exert no impact on each other,
and a full transfer of copyright may suffice for all economic purposes). Thus,
even assuming Egyptian law is to be read into the 2002 Agreement, it must include
the recognition that economic rights under Egyptian law are freely transferable, in
their totality and without limitation.
Plaintiff relies on the separate limited moral right of integrity stated in
Article 143 of the Egyptian Copyright Law. ER921 at Article 143. But nothing in
that provision limits or places any condition on the transferability of the exclusive
economic right to create or prevent derivative works. Instead, the moral right of
integrity is a wholly separate right, recognizable in Egypt, to object only to those
derivative works deemed to constitute deforming changes or a distortion or
mutilation of the work, whether or not the relevant economic rights have been
transferred. Nimmer 8D.01[A] at 8D-3; ER921-922 at Articles 143-145;

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SER1596 (Berne Convention Article 6bis, defining moral rights as existing
[i]ndependently of the authors economic rights). As explained by Defendants
Egyptian law expert, [if] I authorize someone directly or indirectly to make an
adaptation of my work and Im not happy with the derivative work that has been
created[,] I can go in Egypt to court and object [to] the use that is made with my
original work because I believe that it mutilates my work or it creates distortion or
it harms my reputation. ER441-442 (Farhat) at 44:21-45:1.
Such moral rights objections, not cognizable in the United States, have no
bearing on the scope of economic rights conveyed. Regardless of any limited
moral right to object in Egypt to specific exploitations, the transfer of the economic
right to create derivative works remains valid and whomever gets the copyrights
can use all the rights embedded in this copyright. ER479 (Farhat) at 82:710.26
Second, even assuming Egyptian moral rights are read into the 2002
Agreement, such rights may be exercised only in a jurisdiction where they have
been granted by law. ER441-442 (Farhat) at 44:2-45:6; see also ER480 (id.) at
83:3-6 (In Egypt if [the author] considers that the sampled work is mutilation, he

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.

26

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can object before the court to the use of the derivative work that he thinks mutilate
his work in Egypt and only in Egypt.); ER479 (id.) at 82:10-12 (accord); see also
ER921-922 at Article 144. U.S. law does not recognize moral rights. See supra,
pp. 35-36. Thus, any rights Plaintiff retained under Article 143 of the Egyptian
Copyright Law must be enforced in Egypt, not in U.S. courts.
Indeed, Plaintiffs disingenuous reliance on Norfolk ignores the following
highlighted language in the portion Plaintiff quotes: Laws which subsist at the
time and place of the making of a contract, and where it is to be performed, enter
into and form a part of it, as fully as if they had been expressly referred to or
incorporated in its terms. 499 U.S. at 130 (citation and quotations omitted).
Here, the 2002 Agreement was, on its face, to be performed in all parts of the
world. ER 999. That included the United States, which does not recognize moral
rights in musical compositions. Thus, assuming any law were to be read into the
2002 Agreement, pursuant to Norfolk, it must include the U.S. Copyright Acts
recognition of only economic rights and Congresss express rejection of moral
rights. See supra, pp. 35-36. 27

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
27

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Third, any moral rights retained by Plaintiff do not give rise to a claim for
monetary damages. Instead, under Article 143, the authors remedy is only to seek
an injunction in Egypt. ER446 (Farhat) at 49:2-15; see also ER442 (id.) at 45:2-6
(these moral rights are not rights to generate additional compensation for the
author), ER478-479 at 81:18-82:12 (moral rights have no financial impact
whatsoever. Theyre not rights you use to get some additional money.); ER921922 at Articles 143-145.
But, of course, copyright laws (and thus injunctions based thereon) have no
extraterritorial effect. See Subafilms, Ltd. v. Mgm-Pathe Communications Co.,
24 F.3d 1088, 1095-96 (9th Cir. 1994) (en banc); SER1594 (Berne Convention,
Article 5(2)). Thus, even had Plaintiff sought and obtained an injunction in Egypt
based on the argument that Big Pimpin violated his moral right of integrity (which
he tellingly has failed to do), it would have had no impact here, since no
exploitation in Egypt is at issue.
Accordingly, the effect of the Egyptian moral right of integrity on the 2002
Agreement is (at best) extremely limited: separate from the complete transfer of
subject to this congressional authority to impair his contractual obligation. In re
Lewis, 506 F.3d 927, 932 (9th Cir. 2007) (citing Wright v. Union Central Life Ins.
Co., 304 U.S. 502, 516 (1938)); see also Norfolk, 499 U.S. at 130 (a statutory
exemption in federal law could effect[] an override of contractual obligations).
One of the essential attributes of U.S. copyright law is that U.S. courts recognize
only economic rights in musical compositions, and do not provide redress for
moral rights arising in other jurisdictions.
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economic rights, Plaintiff simply retained a wholly separate right to object, in
Egypt, to a use in Egypt that purportedly mutilates or distorts Khosara, and to
obtain an injunction barring such use in Egypt. Any moral rights Plaintiff retained
have no broader effect.
Plaintiffs attempt to read Norfolk expansively (albeit selectively) to allow
him to plead and prove a moral rights case in the United States is entirely
unsupported by the law even Egyptian law. See ER429-430, 453 (Farhat) at
32:19-33:10, 56:7-18 (it is not true that someone that owns economic rights is
required to go back to the author and ask permission to make changes).28
4.

Plaintiffs Attacks on the District Courts Reasoning Fail

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

Plaintiff attempts to avoid this result by repeatedly mischaracterizing the moral


right of integrity as the right to approve modifications to a work. See, e.g.,
Op.Br., p. 2. But, as discussed herein, even where enforceable, the moral right is
not a right to approve anything, and stands entirely apart from the chain of title.
28

See also, e.g., Op.Br., p. 41 (misrepresenting moral rights under Egyptian law as
allowing authors to prevent modification generally).
29

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adaptation and the non-transferable moral right to object in Egypt to specific
modifications are entirely different in substance and scope. Therefore, the canons
of construction recited on pages 43-44 of Plaintiffs brief are entirely inapposite.
5.

If Adopted, Plaintiffs Position Would Lead to a Flood of


Moral Rights Litigation in U.S. Courts

Accepting Plaintiffs argument would create a judicial precedent that


conflicts with and is wholly unsupported by the Copyright Acts and the Berne
Convention Implementation Acts careful rejection of broad, European-style moral
rights. Plaintiffs position would open U.S. courts to moral rights claims relating
to every single contract entered into or to be performed (in whole or in part) in any
country where moral rights are recognized, on the theory that foreign moral rights
somehow impaired the transferability and exercise of economic rights provided
under 17 U.S.C. 106.
Under Plaintiffs reading of Norfolk, every author of a copyrighted work in a
moral rights country (such as France, the United Kingdom, Egypt, and China) who,
as here, fully transfers and assigns his or her economic right to create derivative
works, could come into U.S. courts and use a moral rights restriction purportedly
read into the assignment to seek damages under the U.S. Copyright Act for
exploitations of U.S. copyrights in the U.S., simply because of the location in

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which the original agreement was entered. That clearly was not the intent of
Norfolk.
In Friedman v. Zimmer, 2015 U.S. Dist. LEXIS 143941 (C.D. Cal. July 10,
2015), plaintiff sought supplemental jurisdiction over his moral rights claim under
French and German law. The court rejected this attempt, writing:
Moral rights are a largely unfamiliar concept in U.S.
copyright law. Enforcing foreign laws that are materially
different from U.S. laws raises public policy and
separation of powers concerns. These concerns are
particularly salient in the context of moral rights.
We think it prudent to decline to exercise supplemental
jurisdiction where Plaintiff seeks to enforce rights that
Congress has clearly and deliberately decided not to
provide under U.S. law.
Id. at *20-23 (internal citations omitted).
That analysis applies with even greater force here, as Plaintiff seeks not
simply to obtain supplemental jurisdiction over particular claims for moral rights
under foreign laws, but to obtain a decision that would open the floodgates to de
facto moral rights claims under U.S. law from authors in multiple contexts.
B.

The 2002 Agreement Clearly and Unequivocally Granted the


Right to Create Derivative Works of Khosara

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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1.

The 2002 Agreement Satisfies Article 149 of the 2002


Egyptian Copyright Law

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

misleadingly suggests that the rights to be transferred must be stated


separately[.] Op.Br., p. 53. There is no such requirement in Article 149.
31 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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if not impossible and likely counterproductive for a party desiring to transfer
all economic rights in a work to attempt to list all such rights. Instead, as
explained by Defendants Egyptian law expert: The economic rights are totally or
partially transferable. If Im assigning all the rights, then I have to refer to the
Article 147 itself because the Article 147 gives a list and it says all other means
of exploitation. So I dont know what are other means today so I have to refer to
[Article 147]. ER448 (Farhat) at 50:24-51:23; accord ER449 (id.) at 52:18-21.
Because the only effective means of transferring all economic rights is to
simply say so while referring to Article 147, the 2002 Agreement which does
exactly that (referencing all of the financial usage rights stated in the [Egyptian]
Law No. 82 FOR THE YEAR 2002 32) satisfies Article 149s specificity
requirement. See ER23-24. 33
2.

Nothing in the Context of the 2002 Agreement Limits


Plaintiffs Transfer of the Right to Create Derivative Works

Plaintiff then makes a series of labored and confusing arguments regarding


the context of the 2002 Agreement, none of which has any merit.
Multiple other terms of the 2002 Agreement, quoted above, likewise were
sufficiently specific to satisfy Article 149.

32

33 The

District Court accurately summarized the absurdity of Plaintiffs position,


noting that it would be unreasonable to interpret Egyptian law to require a
copyright holder who is purporting to transfer all of the economic rights in his
copyright to also separately identify each economic right to be transferred and
providing a detailed explanation for that conclusion. See ER23-24.
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First, Plaintiff recycles the same baseless argument that he can bring a
disguised moral rights claim in U.S. courts. Op.Br., pp. 50-51. He cannot. See
supra, Part I.A (pp. 27-45).
Second, Plaintiff claims that, at the time of the 2002 Agreement, he was
attempting to pursue an infringement claim in the United States based on
defendants unauthorized modification to Khosara. Op.Br., p. 51 (citing ER
1411-1414). Plaintiff submits nothing other than a September 2011 declaration,
which is not part of the trial record and inadmissible. See Browning v. Woodford,
372 F. Appx 811, 814 (9th Cir. Mar. 31, 2010).34
Moreover, as discussed above, when Plaintiffs representative contacted
EMI in 2001 regarding potential claims arising from the use of Khosara in Big
Pimpin, he obtained assurances from EMI regarding its rights to license Khosara.
Thereafter, Plaintiff never again raised any claim regarding the use of Khosara in
Big Pimpin until filing this action in 2007. See supra, pp. 9-11 (citing record).
Plaintiffs disappearance is consistent with his decision, a year later, to enter into
the 2002 Agreement. Having been assured (and apparently convinced) by EMI in
2001 that EMI had rights to use Khosara in Big Pimpin, Plaintiff decided to cash
in and completely transfer any remaining rights in Khosara (and other Hamdy
In any event, the complaint in the Nafal v. Carter action to which the declaration
at ER1411-1414 obliquely refers was not even filed until April 1, 2005, well over
two years after the 2002 Agreement. SER2152-82.
34

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compositions) to Jaber in the 2002 Agreement, thereby earning an additional
115,000 Egyptian pounds.
Third, the assertion that Jaber never utilized the right to make changes to
Khosara (Op.Br., p. 52) is entirely irrelevant 35 and false. Jabers company was
kept apprised of (and actively sought) the EMI-Mosley Agreement, and received
50% of the net funds EMI received thereunder,36 a clear utilization of its right to
authorize others to make changes to Khosara.37 This further demonstrates that the
2002 Agreement was intended to do exactly what it did on its face transfer all
economic rights in Khosara to Jaber.
C.

Plaintiff Has No Standing As A Beneficial Owner

Plaintiff claims, in the alternative, that he has standing as a beneficial


owner because he is the heir of [Khosaras] author and continues to own the
right to receive royalties from its exploitation. Op.Br., pp. 54-55. Plaintiff failed
to preserve this argument for appeal, which fails on the merits in any event.

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).
37

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Issues raised for the first time on appeal usually are not considered. Janes,
279 F.3d at 887; accord Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996);
see also Moore v. Czerniak, 574 F.3d 1092, 1116 (9th Cir. 2009) (this rule applies
equally to arguments, factual assertions, and legal theories that were not urged
below), revd on other grounds, 562 U.S. 115 (2011).
Plaintiff claims he preserved his arguments for appeal (see Op.Br., p. 39
n.12), but none of the referenced portions of the record (or anywhere else in the
record) reflects any argument that Plaintiff is the beneficial owner of exclusive
rights in Khosara sufficient to confer standing based on a purported retention of
the right to receive royalties.38 Because Plaintiff failed to preserve this argument
below, he should not be permitted to raise it for the first time on appeal.
In any event, this argument fails on the merits for multiple reasons:
First, beneficial ownership requires proof that the claimant surrendered its
copyright interest in exchange for the payment of royalties, as Plaintiff concedes.
See Op.Br., p. 54 (citing Cortner v. Israel, 732 F.2d 267, 271 (2d Cir. 1984)); see
also Wallert, 141 F. Supp. 3d at 278 (The FAC does not allege that Wallert

Plaintiff did not so allege in his Complaint or the controlling Pre-Trial


Conference Order. See ER1098-1127, 1455-72; Hunt v. Cnty. of Orange, 672 F.3d
606, 617 (9th Cir. 2012) (issues not preserved in the pretrial order have been
eliminated from the action). He never so argued at trial. See ER27-835 (trial
transcripts). And he did not make this argument in his JMOL Motion or in
opposition to Defendants motion. See ER1034-63; ER776-835.
38

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assigned the copyright in exchange for the payment of royalties, as would be
necessary to establish his beneficial ownership of [the] composition copyright.);
accord Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1144 (9th Cir.
2003). The 2002 Agreement contained no such exchange. See ER998-1000;
ER753 (Fahmy) at 210:06-210:16; ER746 (Loutfi) at 343:3-7; ER461-462 (Farhat)
at 64:17-65:13. Instead, the 2002 Agreement was a buy-out of all rights. Plaintiff
made no showing otherwise, or that, after the 2002 Agreement, he received (or
even had the right to receive) any royalties for the exploitation Khosara.
Second, even assuming Plaintiff had shown the actual receipt of any public
performance or mechanical royalties for Khosara which are the only royalties he
claims to have retained the right to receive (see Op.Br., p. 55; ER24-26; ER1000)
he still would have no standing to sue for violation of the derivative work right,
because he was not the beneficial owner of that right. See 17 U.S.C. 501(b)
(The legal or beneficial owner of an exclusive right under a copyright is entitled
to institute an action for any infringement of that particular right[.]). Where,
as here, the right allegedly violated is the right to prepare derivative works,
retention of so-called writers share [royalties] for public performances of the
[original] work is an insufficient basis for standing. The same is true for
receipt of mechanical royalties. Gordy, 2016 U.S. Dist. LEXIS 47694, at *6667 & n.39. Thus, even assuming Plaintiff had continued to obtain mechanical

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royalties arising from the separate reproduction right (17 U.S.C. 106(1)) or
public performance royalties arising from the separate right of public performance,
(17 U.S.C. 106(4)), those are not rights that form the subject of this appeal or of
the trial below. Therefore, Plaintiff cannot have beneficial ownership sufficient to
give standing for alleged infringement of the separate right to create and prevent
derivative works under 17 U.S.C. 106(2).
II.

PLAINTIFF IS NOT ENTITLED TO JUDGMENT AS A MATTER OF


LAW ON LIABILITY
Plaintiff next asks this Court, without any decision below on the merits, to

rule in his favor on the merits of his infringement claims as to liability. This
request should be denied for multiple reasons.
A.

This Court Should Not Decide Plaintiffs JMOL

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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Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1205-06 (9th Cir. 2007) (where
district court chose not to rule on an issue, this Court remanded for
determination in the district court); accord Barsten v. Dept of Interior, 896 F.2d
422, 424 (9th Cir. 1990). Plaintiff has offered no reason why any of the exceptions
articulated in Singleton apply; nor is this case one which warrants ignoring the
general rule and the important interests behind it. 39 Accordingly, even assuming
the Court were to reverse the dismissal of Plaintiffs claims for lack of standing, it
should simply remand for determination of the remaining issues that the District
Court declined to reach.
B.

Plaintiff is Not Entitled to Judgment as a Matter of Law

In any event, Plaintiff fails to demonstrate that he is entitled to judgment as a


matter of law with respect to infringement. A district court may grant judgment as
a matter of law only when the evidence, construed in the light most favorable to
the non-moving party here, Defendants permits only one reasonable

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.
39

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conclusion. Torres, 548 F.3d at 1205-06.40 Here, there are numerous issues on
which the jury could have found for Defendants, precluding judgment as a matter
of law for Plaintiff and, in fact, further justifying affirmance of the dismissal of
Plaintiffs claims: 41
First, as explained in detail above, Plaintiff failed to prove he owned any
copyright in Khosara, because he assigned all such copyrights to Jaber in the 2002
Agreement.
Second, Defendants alleged use of Khosara in Big Pimpin was validly and
expressly licensed by EMI. In the 2001 EMI-Mosley Agreement, Defendant
Mosley paid $100,000 to EMI for the right to use Khosara in Big Pimpin. See
ER967-993. Defendants established the EMI chain of title running from the 1995
Fahmy-SEP Agreement, to the 1995 SEP-EMI Agreement, to the 2001 EMIMosley Agreement. See ER967-993 (Ex. 207); ER390-392 (Ancliff); ER609

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).
40

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).
41

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(Cheesley); see also ER251 at 4:8-23 (Plaintiff stipulated he did not contest that
rights owned by Sout el Phan passed to EMI Music Arabia); ER465-467 (Farhat);
ER958-966. Defendants also presented copious testimony that Defendants chain
of title underlying the 2001 EMI-Mosley Agreement transferred extensive
publishing rights in Khosara, including the right to sample Khosara and/or
create derivative works. See, e.g., ER342-346, 353-362, 373-374 (Ancliff);
ER593-594, 608-609 (Cheesley); ER464-467 (Farhat); ER901; ER940-946;
ER1007-09; ER1013-14; SER1886-90; SER1891-93; SER1894-95; SER18991900. 42 Thus, Defendants undisputed and valid license alone defeats Plaintiffs
claim of infringement. See Worldwide Church of God v. Philadelphia Church of
God, Inc., 227 F.3d 1110, 1114 (9th Cir. 2000) (The existence of a license creates
an affirmative defense to a claim of copyright infringement.).
Third, Sout el Phan/Alam el Phan also granted, at minimum, an implied
license for the use of Khosara in Big Pimpin. Sout el Phan signed off on the EMIMosley Agreement, and (through its successor, Alam el Phan, owned by Jaber)
The conduct of the parties to the 1995 SEP-EMI Agreement after it was
executed but before this dispute developed also demonstrated unequivocally their
understanding that it included the right to exploit the musical compositions listed
therein. See supra, pp. 6, 49 & n.36 (citing record); see also U.S. Cellular Inv. Co.
of L.A., Inc. v. GTE Mobilnet, Inc., 281 F.3d 929, 937 (9th Cir. 2002) (The
construction given the contract by the acts and conduct of the parties with
knowledge of its terms, before any controversy has arisen as to its meaning, is
entitled to great weight and will, when reasonable, be adopted and enforced by the
court.) (citation and quotations omitted).
42

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received half of the net proceeds from that agreement. See supra, pp. 6, 49 & n.36
(citing record). Thus, even assuming the 1995 SEP-EMI Agreement had not given
EMI the ability to license the right to sample Khosara, Sout el Phan and/or its
successor impliedly granted such a license directly. See I.A.E., Inc. v. Shaver, 74
F.3d 768, 775 (7th Cir. 1996) (consent given in the form of mere permission or
lack of objection is also equivalent to a nonexclusive license and is not required to
be in writing, and a nonexclusive license creates an affirmative defense to
copyright infringement) (citing Effects Assocs. v. Cohen, 908 F.2d 555, 559 (9th
Cir. 1990), cert. denied, 498 U.S. 1103 (1991)).
Fourth, Defendants presented evidence at trial sufficient to warrant
judgment on their defense of equitable estoppel barring Plaintiffs claims
completely. After EMI presented evidence of its valid license to Plaintiffs
representative, EMI never heard from Plaintiff or his representatives again until
Plaintiff filed this action six years later.43 On the basis of Plaintiffs silence, EMI
assumed Plaintiff was satisfied with the answers he received and finalized the
EMI-Mosley Agreement, and Mosley concluded the agreement with EMI and paid
$100,000 in consideration, confident both at the time and for years afterward that
EMI had whatever publishing rights in Khosara may have been necessary.
[E]stoppel may be accomplished by a plaintiffs silence and inaction.
Carson v. Dynegy, Inc., 344 F.3d 446, 453 (5th Cir. 2003); accord Hampton v.
Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).
43

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Thereafter, all of the other Defendants relied on the rights obtained in the EMIMosley Agreement (and the various representations and warranties made based
thereupon) in exploiting Big Pimpin. See supra, p. 11 (citing record).
Accordingly, based on Plaintiffs silence in the face of his knowledge of the
EMI-Mosley Agreement, Plaintiff should be estopped from contesting the validity
of the perpetual license received under the EMI-Mosely Agreement. Robbins v.
Lee, 285 F. Appx 462, 462 (9th Cir. July 11, 2008) (plaintiff equitably estopped
from asserting copyright infringement claim); Hadady Corp. v. Dean Witter
Reynolds, Inc., 739 F. Supp. 1392, 1399-1400 (C.D. Cal. 1990) (same).
Fifth, Plaintiff failed to prove substantial similarity as a matter of law. See
Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Significant
evidence was presented at trial to show there was no substantial similarity between
any original, protectable elements of the Khosara composition and Big Pimpin.
See ER530-554 (Ferrara). The evidence demonstrated that the only compositional
elements of Khosara used in Big Pimpin were non-protectable musical building
blocks and trite, minimal, [and] fragmentary excerpts. Id.; see also Newton v.
Diamond, 204 F. Supp. 2d 1244, 1256 (C.D. Cal. 2002) (small and unoriginal
three-note sequence ineligible for copyright protection), affd, 388 F.3d 1189 (9th
Cir. 2003); Jean v. Bug Music, Inc., 2002 U.S. Dist. LEXIS 3176, at *21 (S.D.N.Y.

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Feb. 25, 2002) (no substantial similarity where two works shared common lyrical
phrase and common musical sequence).
Sixth, the jury reasonably could have found that any copying in Big Pimpin
from the Khosara composition was de minimis. See Newton, 388 F.3d at 1192-93,
cert. denied, 545 U.S. 1114 (2005).
Seventh, Defendants also presented evidence at trial supporting a defense of
fair use. See ER1114-15 at 16:11-17:3; ER552-53 (Ferrara); ER173 (Marcus).
III.

THE DISTRICT COURTS IN LIMINE RULING EXCLUDING


SOUND RECORDINGS OF KHOSARA FROM EVIDENCE WAS NOT
AN ABUSE OF DISCRETION44
Evidentiary rulings are reviewed for abuse of discretion and should not be

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).
44

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McEuin, 328 F.3d at 1035 (exclusion of evidence under FRE 403 is reviewed with
considerable deference).
The District Court granted Defendants motion in limine to exclude sound
recordings of Khosara because [p]resenting the sound recordings at trial carries a
significant risk of confusing and misleading the jury and could lead the jury to
attach undue weight to the similarities between the two recordings, as distinct from
the musical composition itself. The risk that the jury may assign such undue
weight is particularly problematic because plaintiff admits that his copyright does
not include the 1992 recording of Khosara sampled in Big Pimpin. ER1149; see
also ER1176-78 (conceding non-ownership of sound recordings). 45
The District Courts decision was not an abuse of discretion. As the District
Court held, the case law is legion that when a comparison is made for purposes of
ascertaining whether there has been infringement of a copyright in a written
composition, the factfinder may only compare those musical elements which are
actually protected, which in most cases will be the sheet music of the written
composition. ER1147 (citing Apple Comp. Inc. v. Microsoft Corp., 35 F.3d
1435, 1443 (9th Cir. 1994); Newton, 204 F. Supp. 2d at 1249; see also Newton,

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).
45

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388 F.3d at 1193 (in considering claim of copying of musical composition, one
may consider only . . . appropriation of the songs compositional elements and
must remove from consideration all the elements unique to [the recorded]
performance); Williams v. Bridgeport Music, Inc., 2014 U.S. Dist. LEXIS
182240, at *29 (C.D. Cal. Oct. 30, 2014) (absent other evidence, the lead sheets
are deemed to define the scope of Defendants copyrighted compositions); accord
Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006, at *48-49 (C.D. Cal.
Apr. 8, 2016).46
Here, as in Newton, there was evidence of improvisation necessary to create
the Khosara sound recording from the minimal scoring of the composition and
thus the court was correct in filtering out the sound recording to ensure that the
jury would only compare Big Pimpin to the Khosara musical composition. See
Newton, 388 F.3d at 1193-95.

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.
46

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IV.

PLAINTIFF FAILS TO ESTABLISH EXTRAORDINARY


CIRCUMSTANCES JUSTIFYING REASSIGNMENT
There is zero basis for remand here. Even assuming there were, there clearly

is no basis on which to reassign this action. Absent a showing of personal bias


which Plaintiff does not allege and cannot establish a case should be reassigned
only under rare and extraordinary circumstances. Mustang Mktg., 406 F.3d at
610. This Court considers three factors: (1) whether the original judge would
reasonably be expected upon remand to have substantial difficulty in putting out of
his or her mind previously-expressed views or findings determined to be erroneous
or based on evidence that must be rejected; (2) whether reassignment is
advisable to preserve the appearance of justice; and (3) whether reassignment
would entail waste and duplication out of proportion to any gain in preserving the
appearance of fairness. Krechman v. Cnty. of Riverside, 723 F.3d 1104, 1111-12
(9th Cir. 2013) (quoting U.S. v. Jacobs, 855 F.2d 652, 656 (9th Cir. 1988)). While
Plaintiff sets forth a laundry list of purported grievances about the district judge,
not a single one constitutes one of the rare and extraordinary circumstances
identified by the Ninth Circuit.
First, Plaintiff complains that the district judge commented on the clarity,
relevance, or value of certain questions asked by Plaintiffs counsel and sustained
over two dozen defense objections before defense counsel stated a ground for the

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objection. But a court must conduct a jury trial so that inadmissible evidence is
not suggested to the jury by any means and must exercise reasonable control
over the mode and order of examining witnesses. Fed. R. Evid. 103(d), 611(a).
Thus, trial judges have wide discretion regarding the admission of evidence and
even may exclude evidence sua sponte. HDM Flugservice GmbH v. Parker
Hannifin Corp., 332 F.3d 1025, 1034 (6th Cir. 2003); see also Maddox v.
Patterson, 905 F.2d 1178, 1180 (8th Cir. 1990).
The district judge here did not act inappropriately by sustaining Defendants
objections. Rather, the District Court properly reacted to argumentative statements
and repeated questions by Plaintiffs counsel that were patently objectionable. See,
e.g., ER129; cf. ER42 (holding such testimony inadmissible); see also ER707. 47
Second, Plaintiff complains that the district judge criticized his counsel and
called a statement made by his counsel ridiculous in front of the jury. The
district judge promptly apologized to Plaintiffs counsel and to the jury for using
the term ridiculous (ER 670), and reassignment is inappropriate simply because
a judge expressed frustration or made a few troubling comments let alone a
single, isolated remark for which the district judge promptly apologized. Henry A.
v. Willden, 678 F.3d 991, 1012 (9th Cir. 2012). Moreover, the district judge had
47 The

district judge also overruled multiple defense objections before defense


counsel could state a basis for the objection, which negates any suggestion of bias.
See, e.g., ER 484, 578, 582.
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ample reason to be frustrated with Plaintiffs counsels questioning and argument,
for which ridiculous was not an inaccurate description. See ER668-669. In any
event, even verbal excesses by a district judge are not grounds for reassignment
when they had no effect on [the district judges] substantive decisions.
California v. Montrose Chem. Corp., 104 F.3d 1507, 1522 (9th Cir. 1997). Here,
the jury did not even render a verdict, and Plaintiff nowhere suggests any other
effect this lone comment could have had.
Third, Plaintiff contends that this Court should reassign the case because the
district judge allowed the case to take over eight years to get to trial. Plaintiff
ignores that the bulk of any delay was attributable to his own strategic choices.
Plaintiff filed three summary judgment motions, initiated countless discovery
disputes, and retained new counsel midway through the case. See ER1517, 1525,
1532, 1548.48 In any event, a district judges alleged mismanagement of the
docket does not rise to the level of an unusual circumstance justifying
reassignment. Glen Holly Entmt, Inc. v. Tektronix Inc., 352 F.3d 367, 382 (9th
Cir. 2003).
More importantly, the fact that the district judge has presided over this case
for eight years militates strongly against reassignment. If this case were
48 The

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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reassigned, the new district judge would have to expend significant time and effort
to familiarize himself or herself with the issues, which would entail a substantial
waste of judicial resources. Riensche v. Cingular Wireless, LLC, 496 F. Appx
760, 763-64 (9th Cir. Oct. 24, 2012); accord U.S. v. Natl Med. Enters., Inc.,
792 F.2d 906, 914 (9th Cir. 1986).49
V.

NO LEGITIMATE BASIS EXISTS FOR PLAINTIFF TO HAVE


RAISED THE LYRICS OF BIG PIMPIN FOR REVIEW ON THIS
APPEAL
For tactical and other illegitimate reasons, Plaintiff has inserted into this

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.

This strain would be particularly acute because the Central District of


California . . . is one of the busiest districts in the country. Gambra v. Intl Lease
Fin. Corp., 377 F. Supp. 2d 810, 824 (C.D. Cal. 2005) (citation and quotations
omitted).
49

In his opening statement at trial, Plaintiffs counsel compared Big Pimpin to a


skinhead anthem, seeking to prejudice the jury and the District Court with a
completely off-base and offensive comparison. See ER 87. The District Court
recognized this improper tactic and properly precluded Plaintiff from continuing
down this path. ER128-129, ER133-134.
50

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First, Plaintiffs brief shockingly and offensively compares Big Pimpin to a
hypothetical recruitment video for the Ku Klux Klan. His comparison of an
expressive work of fiction created by pioneering African-American artists and
performed in a distinctly African-American musical art form to a non-fiction
promotional vehicle for a white supremacist group that imposed a veritable reign
of terror on newly freed African-Americans in the post-Reconstruction South for
decades using violence such as cross-burning, lynching, arson, and whippings
(see Virginia v. Black, 538 U.S. 343, 352-53 (2003)) demonstrates a high degree
of racial insensitivity that crosses the line of responsible advocacy.
Second, Plaintiff encourages this Court to engage in an evaluation of the
artistic merits of Big Pimpin as a vulgar song.51 Even where that issue has
relevance and it has none here courts recognize that it is not their role to act as
art critics or to determine whether a work of art is vulgar. Martin v. City of
Indianapolis, 192 F.3d 608, 610 (7th Cir. 1999); see also, e.g., Bleistein v.
Plaintiff claims Big Pimpin is vulgar, based on snippets of the song. As
Mr. Carter testified at trial, any work of art including Michelangelos David
can be considered vulgar, depending on ones perspective. ER206. As
Mr. Carter further testified, the lyrics of this song were inspired by a motion
picture which, like many films and other works of art, contain themes of lavish
material consumption and sexual conquests. ER205. Plaintiffs effort to portray
these themes as vulgar in the context of an African-American hip-hop recording
is particularly troubling because of the implicit racial undertones to such argument
and the lack of appreciation for such themes having a genesis in a cultural
heritage of poor, inner city blacks. See Luke Records v. Navarro, 960 F.2d 134,
135-37 (11th Cir. 1992) (per curiam).
51

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Donaldson Lithographing Co., 188 U.S. 239, 251 (1903); Hart v. Elec. Arts, Inc.,
717 F.3d 141, 154 (3d Cir. 2013); Cheffins, 825 F.3d at 598.
As demonstrated herein, the lyrics of Big Pimpin are patently irrelevant to
Plaintiffs lack of standing, to the scope of the rights transferred in the 2002
Agreement, or to any other issue legitimately raised on this appeal. Thus,
Plaintiffs insulting and irrelevant arguments regarding the lyrics should be wholly
rejected by this Court.
CONCLUSION
For all of the foregoing reasons, Defendants respectfully request that the
Court deny Plaintiffs appeal in its entirety and affirm the District Courts
dismissal of Plaintiffs claims for lack of standing.

Dated: December 1, 2016

MITCHELL SILBERBERG & KNUPP LLP


By: /s/ David A. Steinberg
David A. Steinberg
Attorneys for Defendants-Appellees other than
Shawn Carter pka Jay Z

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Dated: December 1, 2016

JENNER & BLOCK LLP


By: /s/ Andrew H. Bart
Andrew H. Bart
Attorneys for Defendant-Appellee
Shawn Carter pka Jay Z

ATTESTATION: The filer attests that concurrence in the filing of this document
has been obtained from all signatories.

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) AND NINTH
CIRCUIT RULE 32-2(b)
Pursuant to Fed. R. App. Proc. 32(a)(7)(C) and Ninth Circuit Rule 32-2(b),
the attached Answering Brief is proportionately-spaced, has a typeface of 14 points
or more and contains 15,335 words, including footnotes. Ninth Circuit Form 8 is
attached hereto on the following page. Counsel relies on the word count of the
computer program used to prepare this brief.

Dated: December 1, 2016

MITCHELL SILBERBERG & KNUPP LLP


By: /s/ David A. Steinberg
David A. Steinberg
Attorneys for Defendants-Appellees other than
Shawn Carter pka Jay Z

Dated: December 1, 2016

JENNER & BLOCK LLP


By: /s/ Andrew H. Bart
Andrew H. Bart
Attorneys for Defendant-Appellee
Shawn Carter pka Jay Z

ATTESTATION: The filer attests that concurrence in the filing of this document
has been obtained from all signatories.

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Form 8.

Certificate of Compliance Pursuant to 9th Circuit Rules


29-2(c)(2) and (3), 32-2 or 32-4' for Case Number 16 55213
-

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the
brief

I certify that (check appropriate option):


This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is 15,335
words or
pages, excluding the portions
exempted by Fe.. R. App. P. 32(a)(7 B 1 , i applicable, and is filed by
(1) x separately represented parties; (2)
a party or parties filing a single brief in
response to multiple briefs; or (3)
a party or parties filing a single brief in response
to a longer joint brief filed under Rule 32-2(b). The briefs type size and type face
comply with Fed. R. App. P. 32(a)(5) and (6).
D This brief complies with the longer length limit authorized by court order dated

. 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

Circuit Rule 32-2(a) and is


pages, excluding
words or
the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. The briefs
type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
E] This brief is accompanied by a motion for leave to file a longer brief pursuant to
pages,
Circuit Rule 29-2(c)(2) or (3) and is
words or
excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. The
briefs type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
LI This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is
pages, excluding the portions
words or
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. The briefs type size and
type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Attorney or
/s/ David A. Steinberg
Unrepresented Litigant

Date

Dec 1,2016

("si" plus typed name is acceptable for electronically-filed documents)

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)

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STATEMENT OF RELATED CASES
Defendants-Appellees are aware of no related case to disclose pursuant to
Ninth Circuit Rule 28-2.6.

Dated: December 1, 2016

MITCHELL SILBERBERG & KNUPP LLP


By: /s/ David A. Steinberg
David A. Steinberg
Attorneys for Defendants-Appellees other than
Shawn Carter pka Jay Z

Dated: December 1, 2016

JENNER & BLOCK LLP


By: /s/ Andrew H. Bart
Andrew H. Bart
Attorneys for Defendant-Appellee
Shawn Carter pka Jay Z

ATTESTATION: The filer attests that concurrence in the filing of this document
has been obtained from all signatories.

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CERTIFICATE OF SERVICE AND CM/ECF FILING
U.S. Court Of Appeals Case No. 16-55213
I hereby certify that I electronically filed the foregoing DEFENDANTSAPPELLEES ANSWERING BRIEF with the Clerk of the Court of the United
States Court of Appeals for the Ninth Circuit by using the appellee CM/ECF
system on December 1, 2016.
I further certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.

Dated: December 1, 2016

MITCHELL SILBERBERG & KNUPP LLP


By: /s/ David A. Steinberg
David A. Steinberg
Attorneys for Defendants-Appellees other than
Shawn Carter pka Jay Z

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