Lawsuit Alleging that Jay-Z's Song "Big Pimpin'" Infringed Plaintiff's Rights in an Egyptian Song Dismissed for Lack of Standing under the 1909 Copyright Act
Jessica McKinney | Bloomberg Law
The U.S. District Court for the Central District of California dismissed the latest lawsuit brought by plaintiff Ahab Joseph (“Julian”) Nafal against Jay-Z and numerous other defendants alleging that the song “Big Pimpin’” infringed plaintiff’s rights in the Egyptian song “Khosara, Khosara.” The court determined that plaintiff still lacked standing to bring the action, even if he were considered a co-exclusive licensee based on a 2008 assignment agreement introduced in the current litigation, because the 1909 Copyright Act governed the issue of standing under Ninth Circuit precedent and plaintiff had failed to join the copyright owners in the action.
Plaintiff’s Prior Lawsuit against Jay-Z
In 2005, plaintiff filed a nearly identical action against Jay-Z and the other defendants in the same district court in connection with the “Big Pimpin’” and “Khosara, Khosara” songs. That court granted summary judgment to the defendants on the basis that plaintiff lacked standing to bring the action, and the U.S. Court of Appeals for the Ninth Circuit affirmed the ruling in an unpublished opinion. See Nafal v. Carter, 540 F. Supp. 2d 1128 (C.D. Cal. 2007) (“Nafal I”), aff’d, 388 F. App’x 721 (9th Cir. 2010). The court concluded that the 1909 Copyright Act applied to the issue of standing under Ninth Circuit precedent because “Khosara, Khosara” was created prior to the 1976 Act. See Nafal I, 540 F. Supp. 2d at 1137-38 (citing Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718 (9th Cir. 1984)). As such, plaintiff was required to join the other copyright owners in the action if he was found to be an exclusive licensee of the work. The court acknowledged that other circuits and the Nimmer copyright treatise have suggested that an owner and/or exclusive licensee’s rights and remedies should be adjudicated under the 1976 Act regardless of the work’s date of creation, but found that the Ninth Circuit “does not appear to follow this rule.” Nafal I, 540 F. Supp. 2d at 1137; see also Roth v. Pritikin, 710 F.2d 934, 938 (2d Cir. 1983); Essex Music, Inc. v. ABKCO Music & Records, Inc., 743 F. Supp. 237, 240-41 (S.D.N.Y. 1990); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 1.01[D] n.309.
The court ultimately concluded that plaintiff was “at best a glorified non-exclusive licensee” (and thus lacked standing) because his rights were extremely limited under the assignment agreement at issue, which was entered into in 2005 and purported to grant a one-half interest in “Khosara, Khosara” to plaintiff. Nafal I, 540 F. Supp. 2d at 1143. The court further noted that even if plaintiff were deemed a “co-exclusive licensee,” the 1909 Act “would require him to join [the copyright owners] in this action through the filing of a first amended complaint.” Id. at 1144.
No Standing to Bring Current Action
Plaintiff contended that he had standing to file the instant lawsuit because he was assigned the remaining one-half interest in “Khosara, Khosara” in 2008, and consequently, now had an exclusive license in the work. The court disagreed, noting that in Nafal I it had concluded that standing must be assessed under the 1909 Act. “[U]nder the Ninth Circuit’s interpretation of the 1909 Act,” the court explained, “even assuming that Plaintiff is a co-exclusive licensee, he still must join the copyright owners.” Nafal II at 5. Because plaintiff had failed to do so, the court granted defendants’ motion to dismiss for failure to state a claim.
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