Fahmy v. Jay–Z

• Decision Date: 09 December 2011
• Docket Number: No. CV 07–5715 CAS (PJWx).,CV 07–5715 CAS (PJWx).
• Citation: 835 F.Supp.2d 783
• Court: U.S. District Court — Central District of California
• Parties: Osama Ahmed FAHMY v. JAY–Z; et al.

835 F.Supp.2d 783

Osama Ahmed FAHMY

v.JAY–Z; et al.

No. CV 07–5715 CAS (PJWx).

United States District Court, C.D. California.

Dec. 9, 2011.

Edward O. Lear, Edward O. Lear Law Offices, Los Angeles, CA, for Osama Ahmed Fahmy.

Russell J. Frackman, Alexa L. Lewis, Mitchell Silberberg & Knupp LLP, Henry L. Self, III, William Joseph Briggs, II, Lavely & Singer APC, Los Angeles, CA, for Jay–Z et al.

Proceedings: (In Chambers:) DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT WITH RESPECT TO STATUTE OF LIMITATIONS (filed 8/25/2011)

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT WITH RESPECT TO CONCERT REVENUES (filed 8/25/2011)

CHRISTINA A. SNYDER, District Judge.

I. INTRODUCTION

On August 31, 2011, plaintiff Osama Ahmed Fahmy (“plaintiff”) filed suit against defendants Jay–Z, (aka Shawn Carter) (“Jay–Z”), Timothy Mosley, Kyambo Joshua, Rob Bourdon, Brad Delson, Mike Shinoda, Dave Farrell, Joseph Hahn, Chester Bennington, Big Bad Mr. Hahn Music, Chesterchaz Publishing, EMI Blackwood Music Inc., EMI Publishing Ltd., Kenji Kobayashi Music, Lil Lulu Publishing, Machine Shop Recordings LLC, Marcy Projects Productions II, MTV Networks Enterprises Inc., Nondisclosure Agreement Music, Paramount Home Entertainment Inc., Paramount Pictures Corporation, Radical Media, Rob Bourdon Music, Roc–A–Fella Records LLC, Timbaland Productions Inc., UMG Recordings Inc., Universal Music and Video Distribution Inc., and Warner Music Inc., alleging various claims of copyright infringement pursuant to the Copyright Act, 17 U.S.C. § 101 et seq.

On August 25, 2011, both parties filed motions for partial summary judgment as to discrete questions of law. Defendants' motion concerns whether the Copyright Act's statute of limitations period limits plaintiff's available damages. Plaintiff opposed the motion on September 26, 2011, and defendants replied on October 10, 2011.

Plaintiff's motion pertains to whether plaintiff may recover defendants' profits from concert revenues due to defendants' alleged infringing live performances of Big Pimpin'. Defendants filed their opposition on September 26, 2011; plaintiff replied on October 10, 2011; defendants filled a surreply on October 25, 2011; and plaintiff filed a response to the surreply on November 2, 2011. Both motions are currently before the Court.

II. BACKGROUND

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 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 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.

In or around 2004 or 2005, plaintiff signed a document presented by Sima authorizing third-party Ahab Joseph Nafal (“Nafal”) to assert claims on behalf of the Hamdy heirs in the United States. On April 1, 2005, Nafal filed suit against Jay–Z and others in this district. See Ahab Joseph (“Julian”) Nafal v. Shawn Carter, et al., Case No. CV 05–2480 SVW (PJWx) (C.D.Cal.2005). Nafal asserted claims similar to those alleged herein: that the song Big Pimpin', and variations thereof, infringed Nafal's co-ownership interest in Khosara Khosara. However, the court determined that Nafal was a non-exclusive licensee—not authorized to prosecute an action against alleged infringers—and therefore lacked standing to bring the case. See Nafal v. Carter, 540 F.Supp.2d 1128, 1143–44 (C.D.Cal.2007), aff'd388 Fed.Appx. 721 (9th Cir.2010).

On August 31, 2007, approximately three weeks after the Nafal case was dismissed, plaintiff filed the present action in this Court. See Dkt. No. 1.

III. LEGAL STANDARD

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see alsoFed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make “conclusory allegations [in] an affidavit.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment must be granted for the moving party if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548;see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir.1997).

In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n. 3 (9th Cir.1987). When deciding a motion for summary judgment, “the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir.1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

IV. DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING STATUTE OF LIMITATIONS

The Copyright Act's statute of limitations provides: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). A claim for copyright infringement “accrues when one has knowledge of a violation or is chargeable with such knowledge.” Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994). Actual or constructive knowledge of facts giving rise to the alleged infringement is sufficient; knowledge of the legal theory is not required. See Gutierrez v. Mofid, 39 Cal.3d 892, 897–98, 218 Cal.Rptr. 313, 705 P.2d 886 (1985) (“[T]he uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim,” and therefore “[i]t is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action”) (emphasis in original).

A defendant is only liable for “his acts of infringement committed within three years prior to [a plaintiff's] lawsuit.” Makedwde Publ'g Co. v. Johnson, 37 F.3d 180, 181 (5th Cir.1994) (“We are persuaded by the Ninth, Sixth, and Second Circuits' interpretation of section 507(b). [A defendant] is only liable for his acts of infringement committed within three years prior to [a plaintiff's] lawsuit.”) (emphasis in original); see Roley, 19 F.3d at 481–82. Accordingly, recovery “is allowed only for those acts occurring within three years of suit and is disallowed for earlier infringing acts.” Stone v. Williams, 970 F.2d 1043, 1049–50 (2d Cir.1992).

Generally, statutes of limitations are subject to equitable tolling if a plaintiff shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevent timely filing.” Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (internal quotation marks and citation omitted). Thus, “the limit imposed by § 507(b) [of the Copyright Act]...