Triston Daley's List: OAA - Legal Case

• infringement, infringing, concert, indirect, music, toll, statute of limitations, copyrighted, infringer, ticket, song, lawsuit, equitable tolling, infringed, summary judgment, gross revenues, misrepresentation, copyright infringement, ticket sales, musical, Copyright Act, cause of action, statutory period, apportionment, constructive, textbook, notice, causal, nexus, partial

• Plaintiff is the nephew of Baligh Hamdy, an Egyptian composer (now deceased) who allegedly wrote the song Khosara, Khosara in 1957. The gravamen of plaintiff's complaint is that Jay-Z infringed the Khosara, Khosara composition in his well-known hip-hop song Big Pimpin', released in or around 1999. The Khosara, Khosara copyright interests presently are owned in varying  [**3] percentages by Hamdy's surviving relatives, including: plaintiff; plaintiff's uncle (owner of approximately 66 percent of the copyright); and each of plaintiff's three siblings. Defendants' Statement of Uncontroverted Facts ("DSUF") ¶ 1.

  It is undisputed that plaintiff became aware of Big Pimpin' and its alleged infringement of Khosara, Khosara during a December 2000 telephone call. Plaintiff's Statement of Undisputed Facts ("PSUF") ¶ 21. Farouk Sima ("Sima"), an Egyptian businessman with business interests in the United States, approached plaintiff one or two days after the telephone call and offered to help prosecute an infringement action in the United States. Id. ¶ 22. Sima and plaintiff agreed that Sima would have the power of attorney to act as a representative of Hamdy's heirs in asserting their legal claim for infringement in the United States, and they executed a written power of attorney agreement concerning the infringement claim for Big Pimpin' on approximately January 27, 2001. Id. ¶¶ 28-29. Between 2001 and 2004, plaintiff believed that Sima was pursuing the heirs' infringement claim in the United States, and in 2004, Sima specifically (and erroneously) told Fahmy that  [**4] a lawsuit had been filed in the United States. Id. ¶¶ 34-35. During this time, plaintiff also hired David Braun ("Braun"), a U.S.-based intellectual property attorney, to investigate a claim for copyright infringement against the defendants. Id. ¶ 30. According to plaintiff, Braun was told by an attorney at EMI (one of the original defendants in this action) that EMI had a valid license with respect to the Khosara, Khosara copyright, authorizing EMI to publish Big Pimpin'. Id. ¶ 31. The EMI attorney refused to disclose the agreement to Braun. Id. Braun thereafter declined representation of the Hamdy heirs. Id. ¶ 33.
• Turning to the present case, defendants urge the Court to view concert revenues as indirect profits because Jay-Z's infringing performances of Big Pimpin' are unrelated to its ticket sales to "the entire concert event." Def. Opp'n at 3. Defendants' position appears to be that Jay-Z does not directly profit from performing Big Pimpin' at his concerts, but that concertgoers  [*796]  purchase concert  [**32] tickets for the "experience" of the event as a whole. The Court is unpersuaded by this argument because there are material questions of fact whether Jay-Z directly profited from performances of Big Pimpin' as set forth above. The same could have been said about anyone who purchased tickets to Hallelujah Hollywood in Frank Music I: perhaps they purchased tickets not because of the infringing music from Kismet, but because the show had received critical acclaim; perhaps they purchased tickets based on pure chance—i.e., they just happened to have been staying at the MGM Grand and decided to see whatever show was running; perhaps they purchased tickets to enjoy the ambiance of the hotel's Ziegfield Theatre, and ultimately did not care about the actual musical at all. Whatever prompted individuals to purchase tickets for Hallelujah Hollywood, the fact remains that defendants allegedly infringed plaintiff's songs as a part of their performance and profited from those performances. The same could be said of this case. On the other hand, a principal distinction between Frank Music I and the present case is that the MGM used Kismet in their advertisements for Hallelujah Hollywood—in other words,  [**33] there was advance notice that Kismet would be performed, and it was performed at every show. See Frank Music II, 886 F.2d at 1550 n.3 (finding direct profits of infringing performances of Kismet). Here, there is no record evidence that Jay-Z used Big Pimpin' in his advertisements for a particular concert or concert series, or that Big Pimpin' was performed at every concert. Accordingly, it is a question of fact whether Jay-Z's concert revenues should be considered direct or indirect. ⁵

• In accordance with the foregoing, the Court GRANTS defendants' motion for summary judgment as to the statute of limitations period. Plaintiff shall not be permitted to seek damages from any alleged  [*797]  infringement occurring prior to August 31, 2004.

  The Court also concludes that there is a triable issue of fact whether the concert revenues plaintiff seeks are properly considered direct profits. The Court reserves judgment as to whether plaintiff is able to prove the requisite causal nexus. The Court therefore DENIES plaintiff's motion for an order specifying that concert revenues are recoverable as a matter of law. However, defendants are directed to respond to discovery requests that go to both the manner of advertising concerts as well as the revenues derived therefrom.

  IT IS SO ORDERED.

2 more annotations...