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U.S. Court of Appeals Case No. 16-55213


UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OSAMA AHMED FAHMY,


Plaintiff-Appellant,
vs.
JAY-Z (aka SHAWN CARTER), et al.,
Defendants-Appellees

APPELLANTS OPENING BRIEF

Appeal From a Judgment of


The United States District Court, Central District of California
Case No. 07-CV-05715 CAS (PJWx)
The Honorable Christina A. Snyder, United States District Judge

BROWNE GEORGE ROSS LLP


Peter W. Ross (State Bar No. 109741)
Keith J. Wesley (State Bar No. 229276)
Corbin K. Barthold (State Bar No. 297938)
2121 Avenue of the Stars, Suite 2400
Los Angeles, California 90067
Telephone: (310) 274-7100
Facsimile: (310) 275-5697
Attorneys for Plaintiff-Appellant
Osama Ahmed Fahmy

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ...............................................................................1
STATEMENT OF JURISDICTION..........................................................................4
STATEMENT OF ISSUES PRESENTED FOR REVIEW ......................................4
STATEMENT OF THE CASE..................................................................................6
I.

Factual Background. ........................................................................................6


A.

B.

C.

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The Copyright In Issue: Khosara Khosara. .........................................6


1.

Baligh Hamdy becomes one of Egypts most prominent


20th Century music composers...................................................6

2.

Hamdy composes the hit song Khosara Khosara, which


Hafez sings in the movie Fata Ahlami........................................6

Licensing of Khosara Khosara. ............................................................8


1.

Hamdy (and later his heirs) authorize an Egyptian


company, Sout el Phan, to distribute Hamdys works................8

2.

Sout el Phan authorizes EMI Music Arabia to distribute


recordings of Hamdys works outside Egypt..............................8

3.

Under Egyptian law, any attempt to transfer an authors


right to approve alterations that the author deems a
distortion or mutilation is null and void....................................10

The Infringing Work In Issue: Big Pimpin. ......................................13


1.

Shawn Carter (Jay-Z) is a rapper, and Timothy Mosley


(Timbaland) is a music producer...........................................13

2.

Without permission, Timbaland and Jay-Z loop the


hook of Khosara Khosara verbatim throughout a rap
song, Big Pimpin, that becomes a hit. .....................................13

3.

Timbaland and EMI Music Arabia enter into an


agreement by which EMI Music Arabia covenants not to
sue over the use of Khosara Khosara in Big Pimpin. .............16

4.

Hamdys heirs attempt through U.S. residents to pursue


an infringement claim against Big Pimpin. .............................17
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TABLE OF CONTENTS
(contd)
Page
D.
II.

Hamdys heirs grant an Egyptian named Mohsen Jaber


authorization to distribute Hamdys works. ........................................18

Procedural History. ........................................................................................20


A.

In August 2007, Hamdys Family Sues the Individuals and


Entities Who Created and/or Exploited Big Pimpin. .........................20

B.

The District Court Orders that the Case be Phased and


Prohibits Plaintiff from Obtaining Discovery from Defendants.........20

C.

The District Court Summarily Adjudicates that Plaintiff Owns a


Valid Copyright in Khosara Khosara and Has Standing to Sue. .......20

D.

The District Court Limits the Plaintiffs Damages Due to the


Statute of Limitations. .........................................................................21

E.

The District Court Issues Conflicting Rulings on Application of


the Doctrine of Laches that it Then Reconsiders Due to a New
U.S. Supreme Court Decision. ............................................................22

F.

The District Court Bifurcates Liability and Damages at Trial,


But Denies Defendants Motion to Bifurcate Issues of Foreign
Law. .....................................................................................................23

G.

The District Court Grants Defendants Pre-Trial Motion to


Preclude Plaintiff from Playing any Recording of Khosara
Khosara for the Jury at Trial. ..............................................................24

H.

The District Court Holds a Trial at Which the Issues to be


Determined by the Court Versus the Jury Remain Uncertain
Throughout the Trial and Even After the Close of Evidence. ............25

I.

At the Conclusion of the Evidence, the District Court Rules that


Plaintiff Lacks Standing as a Matter of Law and Dismisses the
Case. ....................................................................................................27

SUMMARY OF ARGUMENT ...............................................................................28


1.

Plaintiff Has Standing to Sue for Infringement of


Khosara Khosara...........................................................................................28

2.

Infringement Was Proven as a Matter of Law...............................................30

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TABLE OF CONTENTS
(contd)
Page
3.

The District Court Erred in Excluding Recordings of Khosara


Khosara and in Limiting the Scope of the Work to a Lead Sheet.............30

4.

The Case Should be Reassigned to a Different District Judge


on Remand .....................................................................................................31

STANDARD OF REVIEW .....................................................................................32


ARGUMENT ...........................................................................................................32
I.

Choice-of-Law Issues. ...................................................................................32


A.

II.

Defendants Violated the U.S. Copyright Act by Creating and


Exploiting, in the United States, an Unauthorized Derivative
Work (Big Pimpin) Based on the Khosara Khosara Musical
Composition Created in Egypt. ...........................................................33
1.

The U.S. Copyright Act prohibits unauthorized


derivative works. ...................................................................33

2.

Plaintiffs claims are based on defendants violation of


the U.S. Copyright Acts derivative works provision. ..........36

B.

It is Undisputed that Egyptian Law Governs Issues of


Copyright Ownership and Licensing, and that U.S. Law
Governs Issues of Infringement. .........................................................36

C.

It is Undisputed that the U.S. Copyright Act Provides the


Standard for Standing to Sue for Copyright Infringement..................38

The District Court Erred in Holding, as a Matter of Law, that Plaintiff


Lacked Standing to Sue for Infringement of Khosara Khosara. ..................38
A.

The District Court Erred in Holding, as a Matter of Law, that


Plaintiffs Purported Conveyance of the Right to Prohibit
Unauthorized Derivative Works Based on Khosara Khosara is
Valid Under Egyptian Law. ................................................................39
1.

Egyptian law, which is incorporated into the 2002


agreement, prohibits the assignment of the authors right
to prevent unauthorized modifications to his work. .................39

2.

The district courts analysis was flawed. ..................................41


a.

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The district courts reasoning. ........................................41


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TABLE OF CONTENTS
(contd)
Page
b.

B.

C.

(i)

Flaw Number 1: Holding that the same right


can be simultaneously transferable and nontransferable. ..........................................................43

(ii)

Flaw Number 2: Holding that the right to


prevent unauthorized changes to Khosara
Khosara extends only to the borders of
Egypt and not to America.....................................45

Alternatively, the District Court Erred in Holding, as a Matter


of Law, that the 2002 Agreement Clearly and Unequivocally
Conveyed the Right to Prevent Unauthorized Modifications to
Khosara Khosara. ...............................................................................48
1.

A copyright conveyance by an author must be clear and


unequivocal to be enforceable. .................................................48

2.

The 2002 agreement does not clearly and unequivocally


convey the right to make or approve alterations to
Khosara Khosara. .....................................................................49
a.

The agreement must be read in context..........................49

b.

There is no specific, detailed grant of the right to


make changes to Khosara Khosara in derivative
works...............................................................................53

Alternatively, the District Court Erred in Holding, as a Matter


of Law, that Plaintiff Lacks Standing to Sue for Infringement of
Khosara Khosara Where He is the Heir of its Author and
Continues to Own the Right to Receive Royalties from its
Exploitation. ........................................................................................54
1.

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Flaws in the district courts reasoning............................43

The author and other beneficial owners of a copyright


have standing to sue for its infringement even after they
assign ownership to another......................................................54

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TABLE OF CONTENTS
(contd)
Page
2.

III.

IV.

V.

Plaintiff has standing to sue for infringement of Khosara


Khosara because he is the heir of the author and
continues to own the right to receive royalties from its
exploitation................................................................................55

The Case Should be Remanded Solely for a Determination of


Damages Because Plaintiff Should be Entitled to Judgment as a
Matter of Law on Liability. ...........................................................................55
A.

The Elements of a Copyright Infringement Claim..............................55

B.

Plaintiff Has Proven its Copyright Infringement Claim as a


Matter of Law......................................................................................56
1.

Ownership. ................................................................................56

2.

Access. ......................................................................................56

3.

Substantial Similarity................................................................57

4.

No License. ...............................................................................57

The District Court Erred in Prohibiting Plaintiff from Playing


Recordings of Khosara Khosara at Trial and in Limiting the Scope of
the Copyright in Issue to a Single Piece of Sheet Music...............................58
A.

The Best Evidence of Hamdys Composition is the Recordings


of Hafezs Performance of Khosara Khosara.....................................59

B.

Plaintiff Should Have Been Permitted to Play Recordings of


Khosara Khosara at Trial....................................................................60

The Case Should be Reassigned to a Different Judge on Remand. ..............62


A.

This Court Has Discretion to Reassign the Case to a Different


District Judge on Remand. ..................................................................62

B.

This Court Should Reassign the Case to a Different District


Judge on Remand. ...............................................................................63

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) AND NINTH


CIRCUIT RULE 32-1....................................................................................65
STATEMENT OF RELATED CASES. ..................................................................66

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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Akazawa v. Link New Tech. Intl, Inc.,
520 F.3d 1354 (Fed. Cir. 2008) ..........................................................................37
Authors Guild, Inc. v. Google, Inc.,
804 F.3d 202 (2d Cir. 2015) ...............................................................................60
Baxter v. MCA, Inc.,
812 F.2d 421 (9th Cir. 1987) ..............................................................................56
Brady v. Brown,
51 F.3d 810 (9th Cir. 1995) ................................................................................32
Cortner v. Israel,
732 F.2d 267 (2d Cir. 1984) ...............................................................................54
Cuellar-Aguilar v. Deggeller Attractions, Inc.,
812 F.3d 614 (8th Cir. 2015) ..............................................................................39
Fishman v. LaSalle Natl Bank,
247 F.3d 300 (1st Cir. 2001)...............................................................................51
Fl. E. Coast Ry. Co. v. CSX Transp. Inc.,
42 F.3d 1125,1129-30 (7th Cir. 1994)................................................................50
Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)............................................................................................44
Garcia v. Google, Inc.,
786 F.3d 733 (9th Cir. 2015) ..............................................................................47
Hampton v. Paramount Pictures Corp.,
279 F.2d 100 (9th Cir. 1960) ..............................................................................48
In re Chapman,
166 U.S. 661 (1897)............................................................................................43

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TABLE OF AUTHORITIES
(contd)
Page(s)
In re Padilla,
222 F.3d 1184 (9th Cir. 2000) ............................................................................44
Itar-Tass Russian News Agency v. Russian Kurier, Inc.,
153 F.3d 82 (2d Cir. 1998) .................................................................................37
Jim Henson Productions, Inc. v. John T. Brady & Assoc., Inc.,
16 F. Supp. 2d 259 (S.D.N.Y. 1997) ..................................................................48
Jules Jordan Video, Inc. v. 144942 Canada, Inc.,
617 F.3d 1146 (9th Cir. 2010) ............................................................................52
Krechman v. County of Riverside,
723 F.3d 1104 (9th Cir. 2013) ......................................................................62, 63
Micro Star v. Formgen Inc.,
154 F.3d 1107 (9th Cir. 1998) ............................................................................34
Minden Pictures, Inc. v. John Wiley & Sons, Inc.,
795 F.3d 997 (9th Cir. 2015) ..............................................................................32
Mirage Editions, Inc. v. Albuquerque A.R.T. Co.,
856 F.2d 1341 (9th Cir. 1988) ............................................................................34
Nafal v. Carter,
2010 WL 2852571 (9th Cir. July 21, 2010) .......................................................18
Nafal v. Carter,
540 F. Supp. 2d 1128 (C.D. Cal. 2007) ........................................................18, 23
Negron v. Rivera,
433 F. Supp. 2d 204 (D.P.R. 2006), affd, 504 F.3d 151 (1st Cir. 2007)...........34
New Old Music Group, Inc. v. Gottwald,
122 F. Supp. 3d 78, 83 (S.D.N.Y. 2015) ............................................................33
Newton v. Diamond,
388 F.3d 1189 (9th Cir. 2004) ............................................................................61

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TABLE OF AUTHORITIES
(contd)
Page(s)
Norfolk & Western Ry. Co. v. Am. Train Dispatchers Assn,
499 U.S. 117 (1991)..................................................................................3, 28, 39
Nozzi v. Housing Authority of Los Angeles,
806 F.3d 1178 (9th Cir. 2015) ............................................................................62
Palladium Music, Inc. v. EatSleepMusic, Inc.,
398 F.3d 1193 (10th Cir. 2005) ..........................................................................33
Peer Intl Corp. v. Luna Records, Inc.,
887 F. Supp. 560 (S.D.N.Y. 1995) .....................................................................34
Petrella v. Metro-Goldwyn-Mayer, Inc.,
134 S. Ct. 1962 (2014)........................................................................................22
Phillip v. Jerome H. Remick & Co.,
145 F. Supp. 756 (S.D.N.Y. 1936) .....................................................................48
Pickett v. Prince,
207 F.3d 402 (7th Cir. 2000) ..............................................................................34
Russian Acad. of Sciences v. Am. Geophysical Union,
1998 WL 34333239 (D.D.C. Dec. 17, 1998) .....................................................37
S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081 (9th Cir. 1989) ............................................................................49
Swirsky v. Carey,
376 F.3d 841 (9th Cir. 2004) ..............................................................................61
T.B. Harms Co. v. Jem Records, Inc.,
655 F. Supp. 1575 (D.N.J. 1987)........................................................................60
Three Boys Music Corp. v. Bolton,
212 F.3d 477 (9th Cir. 2000) ..................................................................55, 56, 57
U.S. v. Decinces,
808 F.3d 785 (9th Cir. 2015) ..............................................................................32

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TABLE OF AUTHORITIES
(contd)
Page(s)
Universal Trading & Inv. Co. v. Kiritchenko,
2007 WL 2669841 (N.D. Cal. Sept. 7, 2007).....................................................37
VMG Salsoul, LLC v. Ciccone,
__ F.3d __, 2016 WL 3090780 (9th Cir. June 2, 2016) .....................................61
Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., Inc.,
216 F.2d 945 (9th Cir. 1954) ..............................................................................48
Warren v. Fox Family Worldwide, Inc.,
328 F.3d 1136 (9th Cir. 2003) ............................................................................54
STATE CASES
Edwards v. Arthur Andersen, LLP,
44 Cal. 4th 937 (2008) ........................................................................3, 28, 50, 51
FEDERAL STATUTES
17 U.S.C.
101................................................................................................................4, 33
106..............................................................................................................33, 35
106(2)........................................................................................................passim
501(b)...............................................................................................................38
28 U.S.C.
1331....................................................................................................................4
1338....................................................................................................................4
U.S. Copyright Act............................................................................................passim
U.S. Copyright Act. Subsection (2) .........................................................................33
U.S. Patent Act.........................................................................................................38

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TABLE OF AUTHORITIES
(contd)
Page(s)
STATE STATUTES
California Labor Code
2802............................................................................................................50, 51
2804............................................................................................................50, 51
RULES
Ninth Circuit Rule 28-2.7 ..........................................................................................6
Federal Rules of Appellate Procedure
Rule 4 ....................................................................................................................4
REGULATIONS
37 C.F.R. 202.20 ...................................................................................................62
U.S. Copyright Office Practices 619.7 (3d ed.), citing Registration of
Copyright: Definition of Claimant, 77 Fed. Reg. 29,257, 29,258 (May
17, 2012) .............................................................................................................54
OTHER AUTHORITIES
11 Williston on Contracts 31:7 (4th ed.)...............................................................50
4 Successful Partnering Between Inside and Outside Counsel,
70:39 (2016)......................................................................................................35
6 Lindey on Entertainment, Publ. & the Arts 16:100 (3d. ed.) .............................35
Al Kohn, et al., Kohn on Music Licensing (4th ed.) ................................................41
Berne Convention for the Protection of Literary and Artistic
Work in 1989 ......................................................................................................35
H.R. Rep. No. 609, 100th Cong., 2d Sess, 9-10, 32-34...........................................35
Makeen F. Makeen, 1 Copyright Throughout the World
14:20 (2015)...............................................................................................10, 44

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TABLE OF AUTHORITIES
(contd)
Page(s)
R. Rigamonti, Deconstructing Moral Rights, Harvard Intl L.J.,
Vol. 47, No. 2, 353, 368 (2006)..........................................................................34
Restatement (Second) Conflicts of Laws, 188, 208-09, 222 (1971) ..................37
Roberta Rosenthal Kwall, Copyright and the Moral Right: Is an
American Marriage Possible?, 38 Vand. L. Rev. 1, 94 (1985) .........................35

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PRELIMINARY STATEMENT
Consider the following scenario. A composer say, the famous film-score
composer John Williams enters into a licensing agreement with a music
company. The agreement says that Mr. Williams conveys to the company all
rights to one of his songs say, the famous two-note ostinato from Jaws except
one: he reserves the right to approve any alterations to the song in future
derivative works. He wants to ensure that if his song is being considered, for
example, for use in a new movie or for sampling in a heavy metal rock song, he
retains the ability to approve or disapprove that new and different use.
A film director uses Mr. Williams song in a new recruitment video for the
Ku Klux Klan. Mr. Williams is not happy. He sues the director for violating his
right, under the U.S. Copyright Act, to prepare derivative works based on his
song see 17 U.S.C. Section 106(2). The defendant film director argues that Mr.
Williams has no standing to sue. After all, asserts the defendant, Mr. Williams
licensed his rights to a music company; therefore, only the company may sue.
A court would reject the defendant film directors argument out of hand.
The court would note that Mr. Williams reserved in his licensing agreement the
right to approve any alterations to the song in future derivative works. Thus, the
court would hold that Mr. Williams retained the right and has standing to sue for
its violation.

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This case presents a similar scenario. Plaintiff an heir of Egyptian


composer Baligh Hamdy and representative of the Hamdy family entered into a
licensing agreement with another Egyptian man named Mohsen Jaber. Plaintiff
licensed certain rights related to the song in issue (called Khosara Khosara) to Mr.
Jaber, but he retained the right to approve any modifications to Khosara Khosara
in future derivative works. Rather than reserving the right through an express
provision in the contract, however, plaintiffs right was reserved by the law in
effect at the time (2002) and place (Egypt) of the contract.
Specifically, the relevant provisions of Egyptian law are as follows:
Article 143: The author and his universal successor
shall enjoy over the work perpetual imprescriptible and
inalienable moral rights. Such rights shall include the
following . . . (3) The right to prevent any modification
considered by the author as distortion or mutilation of the
work. . . .
Article 145: Any disposal of any moral rights stipulated
in Articles 143 and 144 shall be considered null and
void.
Thus, like John Williams in our hypothetical, plaintiff reserved the right to
approve modifications of Khosara Khosara in future derivative works. Plaintiff

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and Mr. Williams simply accomplished the same goal in different ways. Mr.
Williams reserved the right through an express contractual provision (as authors do
in America). Plaintiffs right was reserved by law (as happens in Egypt). The
effect, however, should be the same. See Norfolk & Western Ry. Co. v. Am. Train
Dispatchers Assn, 499 U.S. 117, 130 (1991) (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. This principle embraces alike those laws which affect its construction
and those which affect its enforcement or discharge.); Edwards v. Arthur
Andersen, LLP, 44 Cal. 4th 937, 954 (2008) (same principle).
Like the defendant film director in the John Williams hypothetical,
defendants here used a protected song without the copyright owners approval.
Specifically, defendants looped a core excerpt from Khosara Khosara over and
over and over along with vulgar, sexually explicit, misogynistic lyrics in a rap
song named Big Pimpin. As in the John Williams hypothetical, plaintiff on
behalf of himself and the other Hamdy heirs sued for copyright infringement and
asserted a violation of his right to prepare derivative works under 17 U.S.C.
Section 106(2). As in the John Williams hypothetical, defendants argued that the
plaintiff lacked standing to sue. As in the John Williams hypothetical, the district
court should have summarily rejected defendants argument.

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Instead, the district court here adopted the defendants argument wholesale.
It held, as a matter of law, that the Hamdy family not only could have, but did in
fact, give up their right to approve modifications to Khosara Khosara. It thus
concluded that plaintiff lacked standing to sue for copyright infringement.
The district court erred. Through this appeal, Mr. Hamdys family
respectfully asks this Court which will review the district courts holding de novo
to correct that error and others and to remand the case for a new and fair trial.
STATEMENT OF JURISDICTION
This is a copyright infringement case under the United States Copyright Act,
17 U.S.C. Section 101, et seq.

Therefore, the district court had jurisdiction

pursuant to 28 U.S.C. Sections 1331 and 1338.


Judgment was entered on February 5, 2016. (ER 6-8.) On February 9, 2016,
plaintiff timely filed a notice of appeal, under Rule 4 of the Federal Rules of
Appellate Procedure, from the judgment and all underlying interlocutory orders.
(ER 1-5.)
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1.

Did the district court err in holding, as a matter of law, that plaintiff

had contractually assigned his right to prevent modifications to the song Khosara
Khosara, even though, under the Egyptian copyright law incorporated into the
Egyptian contract at issue, any attempt by an author to convey the right to modify

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his copyright in a way he considers to be a distortion or mutilation is null and


void?
2.

In the alternative to Issue 1, did the district court err in holding, as a

matter of law, that the 2002 agreement between plaintiff and Mohsen Jaber clearly
and unequivocally conveyed the right to authorize future derivative works that
modify Khosara Khosara?
3.

In the alternative to Issues 1 and 2, did the district court err in holding,

as a matter of law, that plaintiff lacked standing to sue for infringement of the
Khosara Khosara copyright even though the district court also found that plaintiff
is a rightful heir of the copyrights author, Baligh Hamdy, and continues to own
the right to receive royalties from exploitation of the work?
4.

Assuming the district court erred in dismissing the case, should the

case be remanded solely for a determination of damages because plaintiff is


entitled to judgment as a matter of law on liability?
5.

Assuming the case is remanded for a re-trial on liability and damages,

did the district court err in prohibiting plaintiff from playing at trial any recordings
of Khosara Khosara and in limiting the scope of plaintiffs copyright to a page of
sheet music that is not representative of the full scope of the work?
6.

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Should the case be re-assigned to a different district judge on remand?

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Pursuant to Ninth Circuit Rule 28-2.7, please note that pertinent statutes are
set forth in a separately bound addendum being filed concurrently herewith.
STATEMENT OF THE CASE
I.

Factual Background.
A.

The Copyright In Issue: Khosara Khosara.


1.

Baligh Hamdy becomes one of Egypts most prominent 20th


Century music composers.

Baligh Hamdy is one of the most prominent Egyptian music composers of


the 20th Century. (ER 121-28, 1015-33.) Hamdy rose to fame in the 1950s, while
still a young man, by composing songs for legendary Egyptian singers such as
Umm Kulthoum (perhaps the greatest 20th Century singer of popular music in the
Middle East) and Abdel Halim Hafez (an Egyptian singer and movie star
analogous to Frank Sinatra). (ER 122-24.) During his career, Hamdy composed
dozens of songs for Ms. Kulthoum, Mr. Hafez, and others. (ER 124.)
2.

Hamdy composes the hit song Khosara Khosara, which


Hafez sings in the movie Fata Ahlami.

In 1957, Hamdy composed the song Khosara Khosara (What a Loss, What
a Loss)1 for the movie Fata Ahlami (The Youth of My Dreams), starring
1

The spelling of the work in issue can vary due to its translation from Arabic to
English e.g., Khasara Khasara, Khossara. (ER 154-56.) For clarity and
consistency, the work is spelled Khosara Khosara throughout this brief.
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Hafez.2 (ER 129-30, 142-44, 904-05.) In the movie, Hafezs character learns that
his girlfriend, who lives next door, is moving away. He is distraught and cant
sleep. Thus, he rises from bed, walks outside, and begins singing Khosara
Khosara. (ER 130.) The lyrics convey his dismay that his neighbor and girlfriend
is leaving. (ER 131, 839.)
After being featured in Fata Ahlami, Khosara Khosara became, and
remains, a well-known piece of Middle Eastern music. (ER 130, 726-27.)
Khosara Khosara was included in a compilation, entitled The Movie Collection,
of songs Hafez sang in films. (ER 1013-14.) It has been re-recorded (i.e.,
covered) by current Middle Eastern musicians such as Hossam Ramzy. (ER
838-42.) And it continues to be performed by Middle Eastern musicians and
ensembles to this day.3 (ER 129-30.)

Lest there be any doubt that Hamdy composed Khosara Khosara, he is listed as
the composer of Khosara Khosara: (a) in the credits of Fata Ahlami (ER 142-44,
904-05); (b) on audio recordings of Khosara Khosara (ER 1013-14); (c) on a
certificate issued by the primary music copyright society in Egypt, The Authors,
Music Composers and Publishers Association of Egypt (SACERAU) (ER 90607); (d) on licensing agreements (ER 958-66, ER994-1000); and (e) in
correspondence (ER 1010). There is not a shred of evidence, moreover, that
someone else composed it.
3

Concurrently with the filing of this brief, plaintiff has filed a motion for
permission to lodge audio and video recordings of the relevant music, including the
excerpt from Fata Ahlami featuring Khosara Khosara.
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B.

Licensing of Khosara Khosara.

Hamdy (and later his heirs) wanted the public to hear Hamdys work in its
original form. Thus, they licensed the distribution of many of Hamdys songs,
including Khosara Khosara.
1.

Hamdy (and later his heirs) authorize an Egyptian


company, Sout el Phan, to distribute Hamdys works.

In 1968, Hamdy agreed to allow an Egyptian company, Sout el Phan, to


distribute his works. A copy of the agreement can be found at ER 951-57.
Hamdy passed away in 1993. (ER 720.) In 1995, Hamdys heirs, through
their representative and fellow heir, plaintiff Osama Fahmy, affirmed the
distribution agreement with Sout el Phan. A copy of the agreement can be found at
ER 958-66.
2.

Sout el Phan authorizes EMI Music Arabia to distribute


recordings of Hamdys works outside Egypt.

In 1995, Sout el Phan gave another entity, EMI Music Arabia, the right to
distribute recordings of Hamdys works throughout the world, except in Egypt.
(Sout el Phan retained the rights in Egypt.) A copy of the agreement can be found
at ER 967-93.
In sum, as of the late 1990s, the distribution of Hamdys music, including
Khosara Khosara, worked as follows:

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Before proceeding further, however, it is important to stop for a moment and


discuss an important aspect of Egyptian law affecting the scope of the
aforementioned licenses.

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3.

Under Egyptian law, any attempt to transfer an authors


right to approve alterations that the author deems a
distortion or mutilation is null and void.

Like many countries around the world, Egypt recognizes certain rights
often labeled as moral rights that cannot be taken from, or given away by, an
author. See Makeen F. Makeen, 1 Copyright Throughout the World 14:20 (2015)
(hereinafter Makeen). These rights include the right of integrity i.e., the
right of an author to approve any alterations to his copyrighted work.4
The first Egyptian statute protecting copyrights (or, as Egyptians say,
authors rights) was enacted in 1954. The 1954 law expressly ensured that an
author always retains the right to approve any alterations to his work. More
specifically:

Article 7: The author shall alone have the right to introduce


whatever modifications or changes he chooses in his compiled work .
. . . No other person shall exercise any such right, or any of the forms
prescribed in Article 3 except by virtue of a written authorization from
him or from his heirs. (ER 910.)

Other rights that are traditionally classified as moral rights include the right
of an author to be identified on the copyrighted work and the right to decide
whether to publish the work or to remove it from public circulation. See Makeen
at 14:20. Those other moral rights are not in issue.
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Article 38: All acts of disposal involving the rights prescribed in


Article 5 (first clause), Article 7 (first clause) and Article 9 of the
present law, shall be null and void.

(ER 910, 913 & Addendum 3, 6.)


In 2002, Egypt revised its copyright laws. Prohibitions on conveying the
right to alter a work without an authors permission, however, remained. More
specifically:

Article 143: The author and his universal successor shall enjoy over
the work perpetual imprescriptible and inalienable moral rights. Such
rights shall include the following . . . (3) The right to prevent any
modification considered by the author as distortion or mutilation of
the work. . . .

Article 145: Any disposal of any moral rights stipulated in Articles


143 and 144 shall be considered null and void.

(ER 921-22 & Addendum 14-15.)


In sum, under Egyptian law at all relevant times, any attempt by an author to
transfer his right to approve (or to prepare) modifications that he deems a
mutilation or distortion is null and void.

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Of course, an authors desire to protect the integrity of his work is not


unique to Egypt. It is a universal desire of authors, including those in America.
American copyright law protects this right, albeit in a different way.
First, the U.S. Copyright Act grants authors the right to prevent others from
creating a derivative work i.e., a modification, adaptation, or alteration of a
work. In other words, like Egyptian law, the U.S. Copyright Act bestows upon an
author the right to prevent others from materially changing his work without his
permission.
Second, in the United States, an author can relinquish by contract, but also
retain by contract, his right to prepare or prevent a derivative work. To retain the
derivative work right, an American author transferring his copyright to a third
party must reserve the derivative work right in an express contractual provision.5
In Egypt (and elsewhere), an express contractual provision is unnecessary. Rather,
the authors right to prepare and approve alterations is reserved automatically by
law.

It is not hard to find an example of an American author expressly reserving this


right in a contract. The defendant Jay-Z did it in his agreement with his music
publisher. (ER 870-71 at 6.02: Publisher and its Licensees will have the sole
and exclusive right and license during the Term and Retention Period, throughout
the Territory, to . . . . (e) Make arrangements of, or otherwise adapt or change, any
one or more Compositions in any manner, provided that Publisher shall not make,
or authorize the making of, material changes in the Compositions without your
consent.) (emphasis added).
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In sum, whatever else was licensed by plaintiff to Sout el Phan (and then by
Sout el Phan to EMI Music Arabia), the right to alter Khosara Khosara without
permission was not.
C.

The Infringing Work In Issue: Big Pimpin.


1.

Shawn Carter (Jay-Z) is a rapper, and Timothy Mosley


(Timbaland) is a music producer.

Shawn Carter is a rapper who goes by the stage name Jay-Z. (ER 182-83.)
Timothy Mosley is a music producer who goes by the name Timbaland. (ER
263.)
2.

Without permission, Timbaland and Jay-Z loop the hook


of Khosara Khosara verbatim throughout a rap song, Big
Pimpin, that becomes a hit.

In late 1999, Jay-Z and Timbaland were in the studio working on Jay-Zs
upcoming album. Timbaland played for Jay-Z assorted music that Jay-Z
considered just okay. (ER 184-85.) Jay-Z put on his coat and was about to
leave. Just then, Timbaland played music that stopped Jay-Z dead in his tracks.
(ER 185-87, 266-67.) The music was the first four measures of Khosara Khosara
looped repeatedly along with electronic beats.6 (ER 264, 266-67.) Jay-Z rapped

In the original Khosara Khosara, the first four measures are repeated multiple
times during the song. They are the hook or theme of the song. (ER 165-66.)
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lyrics over the modified Khosara Khosara loop; the result was the song Big
Pimpin. (ER 183.) In other words, Big Pimpin is, in total, three musical
elements: (a) the hook from Hamdys Khosara Khosara repeated on a loop; (b)
Timbalands electronic beats; and (c) Jay-Zs words. (Audio Exs. 1 & 4.)
The lyrics to Big Pimpin are, as Jay-Z admits, very vulgar and sexually
explicit. (ER 205-06.) They contain turns of phrase such as:

You know I thug em, fuck em, love em, leave em. Cause I dont
fuckin need em. Take em out the hood, keep em lookin good. But I
dont fuckin feed em.

Im a pimp in every sense of the word, bitch.

In the cut where I keep em, till I need a nut, till I need to beat the
guts (a lyric Jay-Z describes in his autobiography as two of the most
selfish, least romantic ways to describe sex you can imagine);

Heart cold as assassins, I got no passion. I got no patience. And I


hate waitin. Hoe get yo ass in.

Standin on the corner of my block hustlin. Still getting that cane,


half what I paid slippin right through customs. Itll sell by night its
eggshell white . . . I got so many grams if the Man find out, it will
land me in jail for life.

(ER 947-50.)

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Big Pimpin is Khosara Khosaras opposite in every sense in style, in


message, in deportment, in aesthetic. The song shows impeccably why the
authors right to prevent material changes to her work is everywhere protected. An
author may not want to and should not have to be associated with lyrics glorifying
the objectification of women or the trafficking of illegal narcotics. Jay-Z and
Timbaland did not give Hamdys family a choice, however. Prior to releasing Big
Pimpin, they did not seek permission to use Khosara Khosara. (ER 189-94, 272.)
They took it without asking.
In any event, after Big Pimpin was released, it became a hit in the United
States. According to Jay-Z himself, Big Pimpin was his biggest single up to that
point. (ER 186-87.) Following its initial release, Jay-Z released Big Pimpin in
other compilations, including a 2001 Unplugged album, a 2004 collaboration
with the rock band Linkin Park, a 2004 concert film entitled Fade to Black, and a
2010 greatest hits collection. (ER 194-95, 836-37, 853-65.) Jay-Z has also
performed Big Pimpin at concerts throughout the last decade; indeed, he cannot
recall a concert at which he did not perform the song, and all but one of his concert
set lists references it. (ER 195.)

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3.

Timbaland and EMI Music Arabia enter into an agreement


by which EMI Music Arabia covenants not to sue over the
use of Khosara Khosara in Big Pimpin.

As described above, EMI Music Arabia was the company that had a license
to distribute recordings of Hamdys works outside of Egypt. When EMI Music
Arabia discovered Big Pimpin, it sent a demand letter to Timbaland and Jay-Z.
While negotiating a settlement with Timbaland, EMI Music Arabia
representatives contacted its licensor (Sout el Phan) to verify the scope and nature
of Sout el Phans rights in Khosara Khosara. After all, if the licensor (Sout el
Phan) did not own the relevant rights, then the licensee (EMI Music Arabia) didnt
either.
In response, Sout el Phan sent EMI Music Arabia a certificate from the
Egyptian music publishers society, SACERAU. (ER 940-46.) The certificate
stated that Sout El Fan Company is the Publisher of these compilations and has
the right to distribution thereof . . . . The certificate expressly noted however that
the right to make alterations to a work remained with Mr. Hamdy and his
successors. (ER 943) (No amendment or alteration shall be made to the text or to
the melody therein nor exception, merger with any other product or extraction
therefrom except upon a prior written permission from the author or his
nominee.).

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It is unclear whether EMI Music Arabia mentioned the limitation on Sout el


Phans rights to Timbalands representatives. (ER 401-23, 901, 940-46, 1006-12.)
Regardless, EMI Music Arabia and Timbaland entered into a settlement
agreement. Pursuant to the agreement, Timbaland paid EMI Music Arabia
$100,000, and EMI Music Arabia agreed that it would never bring a lawsuit
attacking the use of Khosara Khosara in Big Pimpin. (ER 843-52.) Hamdys
family was neither aware of nor consented to the agreement between EMI Music
Arabia and Timbaland.7 (ER 1331-32.)
4.

Hamdys heirs attempt through U.S. residents to pursue an


infringement claim against Big Pimpin.

Living in Egypt and lacking access to forms of communication we take for


granted in America today, Hamdys heirs attempted to pursue an infringement
claim of their own against Big Pimpin through designated representatives in the
United States. (ER 1411-14.) One such representative, Julian Nafal, ultimately
filed a lawsuit in 2005 against most of the defendants herein. In response, the
defendants argued that Mr. Nafal lacked standing to sue. They claimed that
7

In fact, shortly before the agreement was executed, an experienced American


copyright lawyer, David Braun of the Akin Gump firm, was investigating, on
behalf of a representative of Hamdys heirs, an infringement claim based on the
use of Khosara Khosara in Big Pimpin. (ER 764-72.) Mr. Braun contacted EMI
Music Arabia and sought evidence supporting EMI Music Arabias belief that it
owned the right to authorize derivative works such as Big Pimpin. EMI Music
Arabia refused to provide Mr. Braun the requested proof. (Id.)
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Hamdys heirs were the only people who had standing to sue. (ER 1271
([Nafals] claimed rights, if any, are as a licensee, not a copyright owner or an
assignee of the entire copyright. The Hamdy heirs remain the acknowledged
copyright owners.), ER 1300 (Through this chain, the actual copyright owners,
the Hamdy heirs, sought to evade involvement in this lawsuit.). The district court
agreed with the defendants and dismissed the case for lack of standing. Nafal v.
Carter, 540 F. Supp. 2d 1128 (C.D. Cal. 2007). This Court affirmed. Nafal v.
Carter, 2010 WL 2852571 (9th Cir. July 21, 2010).
A year later, Mr. Nafal attempted to resurrect his claims in a new lawsuit.
To obtain a dismissal, defendants asserted that one of the actual copyright owners
filed his own, still pending, lawsuit asserting the same claims. Fahmy v. Carter,
Case No. CV 07-05715 CAS (PJWx). (ER 1313.)
D.

Hamdys heirs grant an Egyptian named Mohsen Jaber


authorization to distribute Hamdys works.

In 2002 i.e., at the same time that Hamdys heirs were trying to pursue an
infringement claim in the United States Sout el Phan came under new ownership.
(ER 721.) A company called Alam al Phan, owned by a man named Mohsen
Jaber, had taken over Sout el Phan. (Id.) In light of the change in ownership,
Hamdys heirs entered into an agreement with Mr. Jaber. (Id.; see also ER 9941000.) The heirs intended to grant Mr. Jaber and his entities the same rights that

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had previously been granted to Sout el Phan. (ER 721-22.) There is no evidence
that Mr. Jaber or his entities have a different view of the purpose or scope of the
agreement. In other words, no party to the 2002 agreement has disputed plaintiffs
belief as to its purpose or scope.
In sum, as of 2002, the distribution of Hamdys works, including Khosara
Khosara, worked as follows:

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II.

Procedural History.
A.

In August 2007, Hamdys Family Sues the Individuals and


Entities Who Created and/or Exploited Big Pimpin.

Hamdys family, through Hamdys nephew Osama Fahmy, acting for


himself and Hamdys other heirs, filed this copyright infringement case in August
2007. (ER 1455-72.) They sued Jay-Z and Timbaland, as well as other individuals
and entities e.g., record companies, music publishers, a film studio who had
exploited Big Pimpin. (Id.) They claimed that their right to authorize and prevent
derivative works based on Khosara Khosara, which is protected under Section
106(2) of the U.S. Copyright Act, was being infringed. (Id.)
B.

The District Court Orders that the Case be Phased and


Prohibits Plaintiff from Obtaining Discovery from Defendants.

The district court initially ruled that the case would be litigated in phases.
The first phase would determine whether plaintiff owned rights in Khosara
Khosara and whether the defendants had a license to use it in Big Pimpin. (ER
1067.)
C.

The District Court Summarily Adjudicates that Plaintiff Owns a


Valid Copyright in Khosara Khosara and Has Standing to Sue.

On September 17, 2010, plaintiff moved for partial summary judgment on


certain issues, including plaintiffs ownership of the Khosara Khosara copyright,

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plaintiffs standing to sue, and defendants lack of a valid license to use Khosara
Khosara in Big Pimpin. The district court summarily adjudicated in favor of
plaintiff the issues of copyright ownership and standing. It held:
The Court GRANTS plaintiffs motion for partial
summary judgment with respect to the following issues:
(1) that Baligh Hamdy authored and owned the copyright
in the Khosara, Khosara musical composition; (2) that
plaintiff Osama Fahmy is a Hamdy heir, and a co-owner
of the Khosara, Khosara copyright; (3) that plaintiff
Osama Fahmy has standing to bring claims that
defendants works infringed the Khosara, Khosara
copyright.
(ER 1439.) In other words, in May 2011, plaintiff was told that the issues of
ownership and standing had been decided in his favor. There was seemingly no
need for further investigation or discovery or motion practice regarding those
issues.
D.

The District Court Limits the Plaintiffs Damages Due to the


Statute of Limitations.

On December 9, 2011, the district court granted defendants motion for


partial summary judgment on the issue of the statute of limitations. (ER 1393-

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1409.) The district court held that plaintiff had filed his claim more than three
years after discovering the infringement; therefore, under the Copyright Acts
rolling statute of limitations, he would be limited to damages from three years
prior to the filing of the complaint (i.e., August 31, 2004) to the present.
E.

The District Court Issues Conflicting Rulings on Application of


the Doctrine of Laches that it Then Reconsiders Due to a New
U.S. Supreme Court Decision.

As of May 2013, because of the phasing of the case, plaintiff had been
precluded from taking a single deposition of a party during the then six-year
pendency of the case. With no pressure of discovery or a trial date, defendants
made their next attempt at limiting or dismissing the case they filed a motion for
summary judgment on the issue of laches.
The district court first partially granted the motion (ER 1353-92), then it
reconsidered its original ruling and partially granted the motion in a different way
(ER 1345-52), then it ultimately denied the motion based on the new U.S. Supreme
Court case of Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014). (ER
1335-44.) In the final Order, the district court also denied defendants request to
bifurcate discovery related to liability and discovery related to damages. (Id.) In
other words, after nearly seven years, plaintiff was finally afforded the opportunity
to discover the evidence in defendants files and minds.

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F.

The District Court Bifurcates Liability and Damages at Trial, But


Denies Defendants Motion to Bifurcate Issues of Foreign Law.

The case was ultimately set for trial on October 13, 2015. Defendants
moved to bifurcate the trial of liability and damages issues. The district court
granted the motion. (ER 1165-67.)
Defendants also asked the district court to resolve at the outset issues of
foreign law, including whether the 2002 agreement with Mohsen Jaber
effectuated a complete transfer of plaintiffs rights in Khosara, therefore denying
plaintiff standing to bring the instant suit. In other words, defendants intended to
argue at trial that plaintiff lacked standing to sue. They intended to make this
argument despite (a) their repeated assertions in the Nafal case that plaintiff and
the other Hamdy heirs were the only people who had standing to sue (see Section
I.C.4, supra), and (b) the district courts summary adjudication of the issue in
plaintiffs favor in this case.
The district court denied the motion to bifurcate issues of foreign law. (ER
1164-65.) The district court however also disregarded its 2011 order summarily
adjudicating the standing issue and permitted defendants to pursue that defense at
trial.

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G.

The District Court Grants Defendants Pre-Trial Motion to


Preclude Plaintiff from Playing any Recording of Khosara
Khosara for the Jury at Trial.

The district court made another critical pre-trial ruling that severely
prejudiced plaintiff at trial. More specifically, the district court prohibited plaintiff
from playing any recording of Khosara Khosara at trial. (ER 1146-50.) Thus,
when the jury was determining whether Big Pimpin used protectable expression
taken from Khosara Khosara, they could hear Big Pimpin, but they could not
hear, for example, Hafez perform Khosara Khosara. The jury couldnt listen to
the song in issue.
Relatedly, the district court precluded plaintiff from arguing that Hafezs
performance of Khosara Khosara reflected the musical composition written by
Hamdy. Instead, according to the district court, the only admissible version of
Khosara Khosara was a page of sheet music a lead sheet from Hamdys
files. (ER 1150.) The district court maintained that ruling despite undisputed
testimony from an Egyptian musicologist: (a) that the practice in Egypt in the
1950s was for the composer to teach the performer the music he had composed, (b)
that the recording is the best evidence of the composers creation, and (c) that the
sheet music was an incomplete and thus misleading representation of Hamdys
work. (ER 144-53.)

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H.

The District Court Holds a Trial at Which the Issues to be


Determined by the Court Versus the Jury Remain Uncertain
Throughout the Trial and Even After the Close of Evidence.

Despite the aforementioned obstacles, and in a courtroom halfway across the


globe from his home country, plaintiff proceeded to trial. Matters only devolved
from there.
First, no one in the courtroom not the jurors, not the lawyers, not even the
judge knew which issues would be decided by the jury versus the judge. (E.g.,
Trial Day 1, ER 59 (Im gonna either have to decide the equitable issue or the jury
is gonna have to decide the legal issue, but were gonna have to know what the
contract is, what the parties objectively contracted to . . . .); Trial Day 3, ER 317
(MR. ROSS: Question: What is the jury deciding? THE COURT: Thats a big
question that I have for later today on the verdict forms because you have very,
very different views of what the jury should be deciding; and I think we have to
start there before we even get to the jury instructions.); Trial Day 5, After Close
of Evidence, ER 781 ([I]f, in fact, we are going to use an advisory jury verdict on
the various subjects that I believe Im going to decide, then the defendants verdict
form is much closer to where we need to end up than the plaintiffs verdict form . .
. .).) What exactly was being tried to the jury remained unresolved even after the
evidence had closed and counsel were preparing their closing arguments. (Picture

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this scenario for a moment: trying to prepare a closing argument to a jury without
knowing what issues they will decide.) To say this uncertainty hindered plaintiffs
ability to present its case is an understatement.
Second, the district court exhibited bias in favor of the defense. As
explained in detail below, the district court: (a) called plaintiffs counsels
assertion ridiculous in front of the jury (ER 669);8 (b) sustained two dozen
objections by defense counsel before a ground for objection had even been stated
(ER 128, 129, 153, 168, 200, 205, 230, 239, 240, 277, 414, 417, 474, 480, 481,
483, 484, 577, 582, 617, 639, 695, 706, 707); (c) made gratuitous comments about
the clarity, relevance, or value of certain of plaintiffs counsels questions (ER 168,
237, 481, 483, 484, 575, 576, 578, 580, 582, 605, 639, 668, 669, 693, 695, 706,
707); (d) displayed skepticism as to why plaintiff had changed his mind about
coming to the trial despite undisputed evidence from plaintiffs doctor that
plaintiff has a serious medical problem that prevents him from traveling (ER 31415, 1095-97); and (e) criticized plaintiffs counsel for having a different
understanding of which issues would be tried to the jury, even though the district
court itself still did not know which issues would be tried to the jury. (ER 316-17.)

To be sure, the district court later apologized in front of the jury (ER 670), but
such a harsh characterization from the presiding judge particularly when
combined with the other actions of the judge at trial is a bell that is difficult to
unring.
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In short, plaintiffs reward for litigating for over eight years in a faraway
courtroom against some of the wealthiest, most powerful defendants in the music
industry was an unfair trial.
I.

At the Conclusion of the Evidence, the District Court Rules that


Plaintiff Lacks Standing as a Matter of Law and Dismisses the
Case.

Before the case went to the jury, the district court granted defendants
motion for judgment as a matter of law. (ER 9-26.) The district court held, as a
matter of law, that plaintiff had, through the 2002 agreement with Mr. Jaber, given
up all rights in Khosara Khosara; therefore, he lacked standing to sue. In its
ruling, the district court held, as a matter of law, that plaintiff had transferred the
economic right to make or prevent alterations to Khosara Khosara, and the
moral right to make or prevent alterations to Khosara Khosara could not be
enforced in the United States. In reaching its holding, the district court ignored the
testimony of Dr. Hossam Mohammad Loutfi, a leading Egyptian legal scholar who
actually drafted the law the district court was applying, and misinterpreted
Egyptian and U.S. copyright law. Finally, although the district court found that
plaintiff was the authors rightful heir and still has the right to receive royalties
from the exploitation of Khosara Khosara, it nevertheless concluded plaintiff was

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not a legal or beneficial owner with standing to sue for infringement of Khosara
Khosara.
Thus, after eight years of litigation and a full jury trial, the district court
ended the case on the threshold issue of standing.
SUMMARY OF ARGUMENT
1.

Plaintiff Has Standing to Sue for Infringement of Khosara Khosara.


The district court erred in holding, as a matter of law, that plaintiff

transferred the right to approve modifications to Khosara Khosara that distort or


mutilate the work. There are multiple alternative grounds for reversing the district
courts holding.
First, any conveyance of plaintiffs right to prepare or authorize
modifications to Khosara Khosara deemed a mutilation or distortion is null and
void under the governing law; thus plaintiff could not have validly conveyed that
right, in Egypt, to Mr. Jaber. It is undisputed that Egyptian law governs the 2002
agreement between plaintiff and Mr. Jaber. Egyptian law in effect at the time of
the agreement is therefore incorporated therein; the law is given the same weight
and effect as an express contractual provision. Norfolk & W. Ry. Co., supra, 499
U.S. at 130; Edwards, supra, 44 Cal. 4th at 954. Under Egyptian law, any attempt
by an author or his heirs to transfer the right to approve modifications to a work is
null and void. Therefore, the 2002 agreement could not have transferred to Mr.

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Jaber the right to approve modifications to a work. That right remains with the
Hamdy heirs, including plaintiff.
Second, and in the alternative, an authors release of a protectable right in
her creation must be clear, specific, and unequivocal. Absent a clear, specific, and
unequivocal assignment, an authors rights remain with her. Here, the 2002
agreement especially when interpreted in the context of Egyptian law and the
prevailing circumstances did not clearly, specifically, and unequivocally convey
the right to prepare and approve modifications to Khosara Khosara. Therefore,
that right remains with Hamdy and his heirs.
Third, and in the alternative, the district court found that plaintiff (a) is the
rightful heir to the author of Khosara Khosara and (b) continues to own the right to
receive royalties from the exploitation of Khosara Khosara. Under these
circumstances, plaintiff is, at the least, a beneficial owner of Khosara Khosara
with standing to sue for its infringement.
For any or all of these reasons, this Court, reviewing de novo, should reverse
the judgment and remand the case to the district court for a new trial. As explained
immediately below, the new trial should address only damages issues because
infringement has been proven as a matter of law. If the Court disagrees and holds
that there remain disputed material issues of fact as to liability, plaintiff
respectfully requests the Court to correct an important and erroneous evidentiary

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ruling made by the district court. Finally, regardless of the scope of the remand,
the Court should reassign the case to a new district judge.
2.

Infringement Was Proven as a Matter of Law.


The district court erred in denying plaintiffs request for judgment as a

matter of law on the issue of liability for copyright infringement. There is no


reasonable dispute that, absent a valid license, Big Pimpin infringes Khosara
Khosara. The creators of Big Pimpin admit they had access to Khosara Khosara,
and it cannot be reasonably disputed that Big Pimpin incorporates original
expression taken from Khosara Khosara. And, as explained above, defendants
lacked a valid license. Therefore, liability exists as a matter of law, and the case
should be remanded solely for a determination of damages.
3.

The District Court Erred in Excluding Recordings of Khosara Khosara and


in Limiting the Scope of the Work to a Lead Sheet.
Assuming arguendo that this Court does not grant plaintiff judgment as a

matter of law on liability, the Court should hold that the district court clearly erred
in precluding plaintiff from playing audio recordings of Khosara Khosara and in
limiting the scope of plaintiffs copyright to a page of sheet music that was less
than the full scope of Hamdys work.
The district court held that plaintiffs copyright in Khosara Khosara consists
of a mere slip of sheet music (Exhibit 133) containing only the skeletal melody of

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Khosara Khosara. Based on that holding, the district court excluded all recordings
of Khosara Khosara. In other words, the jury in a case about music was barred
from hearing the music.
The district court clearly erred. The undisputed evidence proved that
Hamdy was the composer of the version of Khosara Khosara contained in the
recordings. The district courts conclusion that the lead sheet identified as
Exhibit 133 evidenced the full scope of plaintiffs copyright had no basis in the law
or in the evidence. In any re-trial, the jury must hear the actual song claimed to
have been infringed, just as this Court does when assessing an infringement claim
based on a musical composition.
4.

The Case Should be Reassigned to a Different District Judge on Remand.


This case should be reassigned to a different judge on remand. At trial, the

district judge expressed or implied bias against plaintiff and his counsel. Before
trial, the district judge managed the case unfairly and inefficiently. No civil case
should take over eight years to get to trial. Plaintiff reasonably fears that if the
case returns to the same judge, it will take many years to get to trial again and
that the re-trial will be unfair again. This Court can and should reassign the case to
a different judge on remand, so that plaintiffs claims can be resolved fairly and
efficiently, once and for all.

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STANDARD OF REVIEW
This court reviews the district courts interpretation of foreign law de
novo. Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995). Whether a plaintiff has
standing to bring an infringement claim under the United States Copyright Act is
also reviewed de novo. Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d
997, 1002 (9th Cir. 2015). A district courts exclusion of evidence is reviewed for
an abuse of discretion. U.S. v. Decinces, 808 F.3d 785, 788-89 (9th Cir. 2015). A
district court abuses its discretion when it makes an error of law or acts arbitrarily.
Id. at 789.
ARGUMENT
I.

Choice-of-Law Issues.
This case sits at the lightly traversed intersection of U.S., Egyptian, and

international copyright law. Therefore, before proceeding to discuss in more detail


plaintiffs arguments in this appeal, and so there is no doubt or distortion, we will
identify the law defendants violated and show which law applies to which issue.

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A.

Defendants Violated the U.S. Copyright Act by Creating and


Exploiting, in the United States, an Unauthorized Derivative
Work (Big Pimpin) Based on the Khosara Khosara Musical
Composition Created in Egypt.
1.

The U.S. Copyright Act prohibits unauthorized derivative


works.

Title 17 U.S.C. Section 106 sets forth the rights protected under the U.S.
Copyright Act. Subsection (2) grants copyright owners the exclusive right to
prepare derivative works based upon the copyrighted work. The Act defines a
derivative work as a work based upon one or more pre-existing works, such as a
translation, music arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgement, condensation, or any
other form in which a work may be recast, transformed, or adapted. 17 U.S.C.
101.
A sound recording based on an underlying musical composition would be a
derivative work.9 E.g., Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d
1193, 1197 (10th Cir. 2005). Using a portion of a musical composition in a new
9

A musical composition consists of rhythm, harmony, and melody, and . . .


protects the generic sound that would necessarily result from any performance of
the piece. The sound recording, on the other hand, is the aggregation of sounds
captured in the recording. New Old Music Group, Inc. v. Gottwald, 122 F. Supp.
3d 78, 83 n.1 (S.D.N.Y. 2015)(citation omitted).
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song would also be a derivative work. E.g., Negron v. Rivera, 433 F. Supp. 2d
204, 216-17 (D.P.R. 2006), affd, 504 F.3d 151 (1st Cir. 2007). And [c]hanging
the lyrics of a composition or adapting a composition for a foreign language
creates a derivative work[.] Peer Intl Corp. v. Luna Records, Inc., 887 F. Supp.
560, 566 n.4 (S.D.N.Y. 1995). Each of these types of derivative works cannot be
prepared without the copyright owners specific authority. Id.
The creation or exploitation of an unauthorized derivative work equates to
copyright infringement under the U.S. Copyright Act. Mirage Editions, Inc. v.
Albuquerque A.R.T. Co., 856 F.2d 1341, 1343 (9th Cir. 1988) (The protection of
derivative rights extends beyond mere protection against unauthorized copying to
include the right to make other versions of, perform, or exhibit the work.); see
also Pickett v. Prince, 207 F.3d 402, 405 (7th Cir. 2000) (The Copyright Act
grants the owner of a copyright the exclusive right to prepare derivative works
based upon the copyrighted work.) (emphasis in original); Micro Star v. Formgen
Inc., 154 F.3d 1107, 1112 (9th Cir. 1998) (enjoining derivative work based on
computer game).
Thus, like certain moral rights provisions in Egyptian law (Articles
143/145), the United States Copyright Act gives the author the exclusive right to
decide whether and how his copyrighted work can be modified. See, e.g., R.
Rigamonti, Deconstructing Moral Rights, Harvard Intl L.J., Vol. 47, No. 2, 353,

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368 (2006) ([T]he economic right to create derivative works may be used to
prohibit the publication of unauthorized modifications of the authors work, which
is the main concern of the moral right of integrity.); Roberta Rosenthal Kwall,
Copyright and the Moral Right: Is an American Marriage Possible?, 38 Vand. L.
Rev. 1, 94 (1985) (Under the 1976 [Copyright] Act a creator who holds the
copyrights in his work presently can prevent violations of his integrity interests
that constitute an infringement of his exclusive right to prepare derivative works
under section 106(2).); 4 Successful Partnering Between Inside and Outside
Counsel, 70:39 (2016) (With respect to the 1976 Act, certain provisions provide
protection for authors akin to certain moral rights. . . . Section 106(2) gives an
author the right to prohibit the creation of unauthorized derivative worksindeed
this right exists regardless of the character or quality of the derivative work or
whether such works reflect poorly or well on the authors reputation.); 6 Lindey
on Entertainment, Publ. & the Arts 16:100 (3d. ed.) ([A] claim of infringement
may be available in many instances where the artist is complaining of what can
otherwise be referred to as moral rights.).10

10

In fact, before the United States became a signatory of the Berne Convention
for the Protection of Literary and Artistic Work in 1989, Congress determined it
would be unnecessary to amend U.S. law to recognize moral rights because a
composite of laws in the United States already provided such protections. Among
the examples cited by the House Report was 17 U.S.C. 106, relating to
derivative works . . . H.R. Rep. No. 609, 100th Cong., 2d Sess, 9-10, 32-34.
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2.

Plaintiffs claims are based on defendants violation of the


U.S. Copyright Acts derivative works provision.

Although Hamdy was an Egyptian who created Khosara Khosara in Egypt,


defendants violated the U.S. Copyright Act in the United States. By creating
and/or exploiting Big Pimpin (an unauthorized derivative work based on the
Khosara Khosara musical composition) in the United States, defendants violated
17 U.S.C. Section 106(2).11
B.

It is Undisputed that Egyptian Law Governs Issues of Copyright


Ownership and Licensing, and that U.S. Law Governs Issues of
Infringement.

Plaintiff sued defendants for violating U.S. copyright law. Defendants


responded that plaintiff lost, through contracts negotiated and signed in Egypt, the
right to prevent the making of derivative works based upon Khosara Khosara.
Thus, before determining whether Big Pimpin violated 17 U.S.C. Section 106(2),
the district court evaluated whether plaintiff still owns any or all of the rights to
make or prevent the making of derivative works based upon Khosara Khosara.
That analysis required an application of Egyptian law.

11

It is undisputed that United States copyright law protects Egyptian authors, such
as Hamdy, to the same extent as it protects American authors. That is so because
both the U.S. and Egypt are parties to the Berne Convention. (ER 1428.)
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To synthesize the above, the case involved a two-step process, with a


different countrys laws applied at each step:

First, determine the scope of rights, if any, owned by plaintiff in


Khosara Khosara. This determination is made by applying Egyptian
law.

Second (and assuming plaintiff owned certain rights under Egyptian


law), determine whether defendants violated any rights that fall
within the scope of Section 106(2) of the U.S. Copyright Act. This
determination is made by applying U.S. copyright law.

Defendants did not dispute the district courts choice of law. (ER 1428.)
The choice is supported by the relevant legal authority. Itar-Tass Russian News
Agency v. Russian Kurier, Inc., 153 F.3d 82, 90 (2d Cir. 1998) (Since the works at
issue were created by Russian nationals and first published in Russia, Russian law
is the appropriate source of law to determine issues of ownership of rights.);
Universal Trading & Inv. Co. v. Kiritchenko, 2007 WL 2669841, at **12-13 (N.D.
Cal. Sept. 7, 2007) (applying Ukranian law to determine validity of Ukranian
assignment of rights); Russian Acad. of Sciences v. Am. Geophysical Union, 1998
WL 34333239, at *11 (D.D.C. Dec. 17, 1998) (applying Russian law to issue of
whether Russian authors had transferred their copyright interests); see also
Restatement (Second) Conflicts of Laws, 188, 208-09, 222 (1971); cf. Akazawa

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v. Link New Tech. Intl, Inc., 520 F.3d 1354, 1357 (Fed. Cir. 2008) (applying
Japanese intestacy law to determine ownership of patent prior to determining
whether patent infringed under U.S. Patent Act).
C.

It is Undisputed that the U.S. Copyright Act Provides the


Standard for Standing to Sue for Copyright Infringement.

It is undisputed that the issue of standing to sue for violation of the U.S.
Copyright Act is governed by that same Act. The Act provides that [t]he legal or
beneficial owner of an exclusive right under a copyright is entitled to sue for
infringement of that right. 17 U.S.C. 501(b).
With choice-of-law issues addressed, plaintiff now proceeds to the merits of
his appeal.
II.

The District Court Erred in Holding, as a Matter of Law, that Plaintiff


Lacked Standing to Sue for Infringement of Khosara Khosara.
The district court erred in holding that plaintiff lacks standing to sue for

infringement of the Khosara Khosara copyright because he had transferred all


rights in the copyright in the 2002 agreement with Mr. Jaber. The district court
erred in three independent ways: (a) under Egyptian law, an author may not
convey his right to authorize modifications to his work; (b) the 2002 agreement
does not clearly and unequivocally convey the right to authorize modifications to
Khosara Khosara; and (c) plaintiff is a beneficial owner of the copyright

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because he is the heir of its author and continues to own the right to receive
royalties from its exploitation.12
A.

The District Court Erred in Holding, as a Matter of Law, that


Plaintiffs Purported Conveyance of the Right to Prohibit
Unauthorized Derivative Works Based on Khosara Khosara is
Valid Under Egyptian Law.
1.

Egyptian law, which is incorporated into the 2002


agreement, prohibits the assignment of the authors right to
prevent unauthorized modifications to his work.

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. This principle embraces
alike those laws which affect its construction and those which affect its
enforcement or discharge. Norfolk & W. Ry. Co., supra, 499 U.S. at 130;
Edwards, supra, 44 Cal. 4th at 954 (same). In other words, the governing law is as
much a part of a contract as anything written therein. See Cuellar-Aguilar v.
Deggeller Attractions, Inc., 812 F.3d 614, 619-20 (8th Cir. 2015) (holding that

12

Plaintiff raised these arguments below at ER 792-95, 814-19, 1052-57, 1238-

46.
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labor regulations in place at time of contract were incorporated and enforceable


like any express provision in the contract).
The law that subsisted at the time and place of the making of the 2002
agreement was the 2002 Egyptian copyright act. That law holds that any attempt
by the author or his heirs to give away the right to prevent modifications deemed a
distortion or mutilation is null and void. Article 143 (The author and his
universal successor shall enjoy over the work perpetual imprescriptible and
inalienable moral rights. Such rights shall include the following . . . (3) The right
to prevent any modification considered by the author as distortion or mutilation of
the work. . . .) (ER 921); Article 145 (Any disposal of any moral rights stipulated
in Articles 143 and 144 shall be considered null and void.) (ER 922).
Plaintiffs position that Articles 143 and 145 rendered void any disposal of
his right to prevent unauthorized modifications is supported not just by the
Egyptian statute. It is supported by the author of the statute, Dr. Hossam
Mohammad Loutfi. (ER 726.) He testified that it is not possible, under the law,
for an Egyptian author or his heirs to convey the right to make or approve
alterations to a work. (ER 728-30.)
Plaintiffs position is also supported by statements of defendants experts.
For example, defendants expert Walid Abou Farhat testified that regardless of the
agreement with Mr. Jaber, plaintiff kept his moral rights in Egypt. (ER 478, Q.

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So no matter what Mr. Fahmy signed with Mohsen Jaber giving him all of the
financial rights, Mr. Fahmy still kept the moral rights; true? A. In Egypt, yes.;
(ER 734-35.) Another expert retained by the defendants, a copyright licensing
expert named Robert Kohn, wrote the following in his treatise on music licensing:
A writer may well insist upon the right to approve any added lyrics and may, in
fact, have that right, notwithstanding the terms of the agreement, by virtue of the
authors moral rights in certain countries outside the United States. Al Kohn, et
al., Kohn on Music Licensing, p. 118 (4th ed.) (emphasis added).
In sum, based on the Egyptian law incorporated into the 2002 agreement,
plaintiff still has the right to block any change to Khosara Khosara that he deems a
mutilation or distortion.
2.

The district courts analysis was flawed.


a.

The district courts reasoning.

The district court acknowledged that Egyptian law protects the authors right
to prevent modification of his work and that the right is perpetual,
imprescriptable, and inalienable. (ER 16-19.) The district court held however
that, under Egyptian law, there also exists a transferable economic right of
adaptation. The district court concluded that plaintiff (a) had transferred to Mr.
Jaber the economic right to authorize or prevent modifications to Khosara
Khosara, and (b) could not enforce his moral right to authorize or prevent

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modifications to Khosara Khosara because such a right is not enforceable in a U.S.


court:
Thus, under Egyptian law an author is vested with both a
moral right to prevent modification of their work and an
economic right to authorize or prevent adaptation of
their work. These two rights are fundamentally distinct.
Whereas the moral right to prevent modification is
inalienable, the economic right to authorize or prevent
adaptation may be readily transferred by virtue of Article
149. Moreover, and crucially to the issue of plaintiffs
standing, because the right to prevent modification of a
work is a moral right, it is not enforceable in a suit before
this Court.
(ER 19-20.)
The district courts reasoning can be subdivided into the following four-step
process.

Step One: assign the same exact right i.e., the right to modify a
work two different titles: (1) a moral right, and (2) an economic
right.

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Step Two: hold that the economic right to modify Khosara


Khosara could be, and was, transferred to Mr. Jaber.

Step Three: hold that the moral right to modify Khosara Khosara
could not be transferred to Mr. Jaber and thus remained with plaintiff.

Step Four: hold that plaintiff cannot enforce his economic right
because he had transferred it, and that he cannot enforce his moral
right in the United States because the U.S. Copyright Act does not
recognize moral rights.
b.

Flaws in the district courts reasoning.

There are two overarching flaws in the district courts reasoning:


(i)

Flaw Number 1: Holding that the same right


can be simultaneously transferable and nontransferable.

Under step one of the district courts reasoning, an authors right to approve
or reject changes to his work is assignable if labeled an economic right but
unassignable if labeled a moral right. That cannot be the law of Egypt for
several reasons.
First, the district courts interpretation violates the rule that a court should
interpret a statute to avoid an unjust or an absurd conclusion. In re Chapman,
166 U.S. 661, 667 (1897). It simply makes no sense for the same exact right to be

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both assignable and unassignable. Construing the statute in that manner leads to
an unjust [and] an absurd conclusion.
Second, the district courts interpretation violates the rule that a court should
interpret a statute to fit, if possible, all parts into a harmonious whole. See, e.g.,
Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000).
Third, the district courts interpretation violates the rule that [w]here both a
specific and a general statute address the same subject matter, the specific one
takes precedence regardless of the sequence of the enactment, and must be applied
first. In re Padilla, 222 F.3d 1184, 1192 (9th Cir. 2000). In this instance, the
more specific statutory provisions are Articles 143 and 145. They address whether
an author may convey the right to preclude a change to his work that he deems a
distortion. The more general statutory provisions are Articles 147 and 149. They
simply acknowledge that Egypt generally permits licensing of copyrights.
Fourth, the district courts interpretation ignores the primacy in Egyptian law
of an authors ability to approve changes to his work. Makeen at 14:20 (In case
of conflict between moral rights and economic rights, the former prevail.).
Finally, the district courts interpretation is contrary to the intention of the
author of the law the district court was interpreting. The author, Dr. Loutfi,
explained how to harmonize Articles 143 and 145 (precluding the transfer of the

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right to authorize modifications to a work) and Articles 147 and 149 (allowing the
transfer of any right, including the adaptation right). According to Dr. Loutfi, any
right related to the copyright including, for example, the right to adapt the
copyright from a book to a movie or a musical composition to a recording can be
transferred via a license. (ER 728-30.) However, the right to alter a copyrighted
work in a way that could be considered a mutilation or distortion is always
subject to the authors prior consent on a case-by-case basis. (Id.) The district
court, without explanation, ignored or rejected Dr. Loutfis testimony on this point.
In sum, the district court erred in concluding that whether the right to
prevent unauthorized changes to a work is transferable hinges on the name
assigned to the right. Rather, while Egyptian law generally provides the author an
opportunity to license his work, any attempt by an author to convey his right to
approve modifications to his work is null and void.
(ii)

Flaw Number 2: Holding that the right to


prevent unauthorized changes to Khosara
Khosara extends only to the borders of Egypt
and not to America.

The second overarching flaw in the district courts reasoning is the


conclusion that plaintiff can enforce his right to prevent unauthorized changes to
his work only in a court in Egypt. The district courts conclusion seemed to be

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based on two things: (a) testimony from defendants expert, Mr. Farhat,13 that the
remedy for a violation of plaintiffs moral rights is an injunction in Egypt, and
(b) case law from U.S. courts saying they do not enforce moral rights. Neither
basis is sound.
First, nothing in the Egyptian statute supports the idea that the sole remedy
for a violation of the authors right to prevent unauthorized changes is to seek an
injunction in an Egyptian court. The statute does not say, for example, the right
to prevent unauthorized changes to a work is fully transferrable, except that an
author may seek an injunction in an Egyptian court. Rather, the statute is clear
and unequivocal. It says, [a]ny disposal of any moral rights stipulated in Articles
143 and 144 shall be considered null and void. If a transfer is null and void, it
cannot be enforced in Egypt; it cannot be enforced in America; it cannot be
enforced on Mars. The transfer simply does not exist.
Second, plaintiff brought his claims under Section 106(2) of the United
States Copyright Act i.e., an American law protecting the right to prepare
derivative works based on a copyright (including a foreign copyright). There can
be no dispute that a federal court must adjudicate such a claim.

13

Mr. Farhat is not an unbiased observer. He is the lawyer of the holding


company for Mr. Jabers company, Alam al Phan i.e., the entity that would be
awarded the rights in issue if Mr. Farhats opinion were accepted. (ER 468.)
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The concept of moral rights became relevant solely in determining the


rights plaintiff obtained in Egypt. Once it is determined, under Egyptian law, that
plaintiff obtained (and retains) the right to prevent unauthorized changes to his
work, the question becomes whether that right falls within the ambit of Section
106(2). The answer is that the right plaintiff possesses is the same right protected
by Section 106(2). Section 106(2) gives a copyright owner the right to prevent
others from making new, substantially similar works based on a copyright.
Plaintiffs right to prevent unauthorized changes to his work fits squarely within
Section 106(2). See, supra, Section I.A.1.
It is true, as the district court noted, that this Court said in Garcia v. Google,
Inc., 786 F.3d 733, 746 (9th Cir. 2015), that, other than for works of visual art,
United States copyright law generally does not recognize moral rights. Garcia,
however, did not address whether a foreign author who owns the right to prevent
unauthorized changes to his work may sue for a violation of Section 106(2). Nor
did Garcia consider the interplay between Section 106(2) and certain rights that
have been labeled moral rights. Thus, the two-sentence mention of moral
rights in Garcia is neither binding nor pertinent.
In sum, plaintiff did not give to another Egyptian the right to approve any
changes to Khosara Khosara because any attempt to do so would be null and
void. He thus has standing to assert, under Section 106(2) of the Copyright Act, a

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claim of infringement based on defendants creation and distribution of the


unauthorized derivative work Big Pimpin.
B.

Alternatively, the District Court Erred in Holding, as a Matter of


Law, that the 2002 Agreement Clearly and Unequivocally
Conveyed the Right to Prevent Unauthorized Modifications to
Khosara Khosara.
1.

A copyright conveyance by an author must be clear and


unequivocal to be enforceable.

The clearest language is necessary to divest the author of the fruits of his
labor. Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., Inc., 216 F.2d 945
(9th Cir. 1954), quoting Phillip v. Jerome H. Remick & Co., 145 F. Supp. 756, 758
(S.D.N.Y. 1936). That is true under U.S. law, where an author retains her rights
unless she gives them up in a clear and unequivocal manner. Jim Henson
Productions, Inc. v. John T. Brady & Assoc., Inc., 16 F. Supp. 2d 259, 285
(S.D.N.Y. 1997) ([U]nder both the 1909 and 1976 Copyright Acts, unless the
author has given up his or her rights under copyright in a clear and unequivocal
manner, he or she retains these rights.); see also Hampton v. Paramount Pictures
Corp., 279 F.2d 100, 103 (9th Cir. 1960) (license that permitted licensee to make
reproduction of the photoplays and to license the use thereof did not give licensee
the right to sell such reproductions). It is also true under Egyptian law, where a

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valid copyright assignment must (1) be certified in writing; and (2) contain an
explicit and detailed description of each right to be transferred with the extent and
purpose of transfer and the duration and place of exploitation. (ER 922-23 (Article
149) & Addendum 15.)
There is a good reason for the requirement that copyright transfers from an
author be clear and unequivocal: The copyright laws of both the U.S. and Egypt
exist to protect authors (and thus to motivate people to create); therefore, those
laws should strip an author of her rights only if her intent is indisputable. S.O.S.,
Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th Cir. 1989) (copyright license must
be construed in accordance with the purposes underlying federal copyright law
and [c]hief among these purposes is the protection of the authors rights).
2.

The 2002 agreement does not clearly and unequivocally


convey the right to make or approve alterations to Khosara
Khosara.

The 2002 agreement particularly when read in the context of the applicable
law and circumstances at the time of its execution does not clearly and
unequivocally convey the right to prevent modifications of Khosara Khosara.
a.

The agreement must be read in context.

When attempting to ascertain the parties intent, a court must read the
agreement in the context of the surrounding circumstances in effect at the time of

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its execution. 11 Williston on Contracts 31:7 (4th ed.). A critical surrounding


circumstance is the law in place at the time of the agreements execution. Id.; see
also Fl. E. Coast Ry. Co. v. CSX Transp. Inc., 42 F.3d 1125,1129-30 (7th Cir.
1994) ([T]he legal framework that existed at the time of a contracts execution
must bear on its construction.). The context of the 2002 agreement makes plain
that the parties did not intend to convey the right to make or authorize changes to
Khosara Khosara in derivative works.
First, as detailed above, the law in Egypt automatically reserved to the
author the right to prevent or authorize changes that he deemed a distortion or
mutilation. Thus, there was no reason for plaintiff to reserve the right through an
express contractual provision; it was preserved by law.14
The California Supreme Court confronted a similar issue in Edwards v.
Arthur Andersen LLP. The statute in issue there was California Labor Code
Section 2804, which made null and void any provision wherein an employee
attempted to waive his right, under Section 2802, to indemnity from his employer.
14

Defendants expert, Mr. Farhat, agreed with this point. (ER 734 (Q. Is it the
normal practice in Egypt to get an authors permission before making any changes
to his work? A. Its I couldnt I couldnt tell if its common practice, but what
I can confirm is that if you dont have the author permission, then you are
infringing the law.).) So did Dr. Loutfi. (ER 730 (Q. And, in your experience, is
it common practice for Egyptian license agreements to contain a provision
reserving the authors right to approve alterations to his work? A. Its by law.
Then we there is no need to mention it within a license because a license is per se
it relates only to economic rights.).)
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The question before the California Supreme Court was whether an employment
agreement that released any and all claims against the former employer included
a release of his right to indemnity under Section 2802. Edwards, 44 Cal. 4th at
950. The defendant asserted that it did not except indemnity rights from the
release because it was aware that under Labor Code section 2804, such rights are
statutorily nonwaivable. Id. at 954. The California Supreme Court agreed that
when interpreting the agreement, the court could presume that [defendant] knew
[plaintiffs] indemnity rights were statutorily nonwaivable. Thus, the California
Supreme Court held that a contract provision releasing any and all claims does
not encompass nonwaivable statutory protections . . . . Id. at 955.
Like in Edwards, the parties here are presumed to have known that the law
of Egypt makes null and void any attempt to transfer the authors right to prevent
unauthorized changes to his work. Like in Edwards, the agreement in issue here
should be construed to except from its scope the right to prevent unauthorized
changes to Khosara Khosara.
Second, at the time of the 2002 agreement, plaintiff was attempting to
pursue an infringement claim in the United States based on defendants
unauthorized modification to Khosara Khosara. (ER 1411-14.) It would have
been illogical for plaintiff to have assigned away all rights, including the right that
he was actively seeking to enforce. See Fishman v. LaSalle Natl Bank, 247 F.3d

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300, 302 (1st Cir. 2001) (The presumption in commercial contracts is that the
parties were trying to accomplish something rational. Common sense is as much a
part of contract interpretation as is the dictionary or the arsenal of cannons.).
Third, there is no indication that Mr. Jaber has ever utilized or licensed the
right to make changes to Khosara Khosara. Nor is there even any evidence that he
intended for the agreement to include that right or has since claimed that right.
Had Mr. Jaber truly bargained for the right to make alterations to Khosara Khosara,
one would expect him to have exercised that right or spoken up in the intervening
14 years since he executed the 2002 agreement.15 Cf. Jules Jordan Video, Inc. v.
144942 Canada, Inc., 617 F.3d 1146, 1157 (9th Cir. 2010) (rejecting alleged
infringers argument about invalid copyright transfer where no dispute between
copyright owner and transferee).
The totality of the circumstances indicates that the parties to the 2002
agreement were not attempting to violate Egyptian law by transferring plaintiffs
right to authorize modifications to Khosara Khosara.

15

Indeed, defendants retained a lawyer for Mr. Jabers company to opine on


Egyptian law. If Mr. Jaber was willing to say he intended to receive the right to
alter Khosara Khosara, defendants undoubtedly would have gotten testimony to
that effect.
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b.

There is no specific, detailed grant of the right to


make changes to Khosara Khosara in derivative
works.

Even putting aside the relevant context described above, a reading of the
plain language of the agreement in isolation leaves the reader at a loss as to what
exactly was transferred. The agreement is, to put it bluntly, a mess. One thing that
is not separately, clearly, and unequivocally referenced in the agreement, however,
is the right to make changes to future versions of Khosara Khosara by, for
example, changing the lyrics and/or adding new music. Indeed, the district court
itself had previously found the 2002 agreement to be ambiguous, and the language
of the agreement did not change during trial. (ER 1203.)
Under these circumstances, the default (under both Egyptian and U.S. law)
is always for the rights to remain with the author. The rights in issue were not
clearly and expressly transferred; they remain with Hamdys family.

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C.

Alternatively, the District Court Erred in Holding, as a Matter of


Law, that Plaintiff Lacks Standing to Sue for Infringement of
Khosara Khosara Where He is the Heir of its Author and
Continues to Own the Right to Receive Royalties from its
Exploitation.
1.

The author and other beneficial owners of a copyright


have standing to sue for its infringement even after they
assign ownership to another.

[T]he author always retains a legal or equitable interest in the copyright,


even if the copyright has been licensed or assigned to a third party. Compendium
of U.S. Copyright Office Practices 619.7 (3d ed.), citing Registration of
Copyright: Definition of Claimant, 77 Fed. Reg. 29,257, 29,258 (May 17, 2012).
Thus, [w]hen a composer assigns copyright title to a publisher in exchange for the
payment of royalties, an equitable trust relationship is established between the two
parties which gives the composer standing to sue for infringement of that
copyright. Cortner v. Israel, 732 F.2d 267, 271 (2d Cir. 1984); see also Warren v.
Fox Family Worldwide, Inc., 328 F.3d 1136, 1144 (9th Cir. 2003) (Several other
circuits have held that a creator may be a beneficial owner where a creator assigned
all rights to a work, but the assignee was obligated to pay royalties to the composer
if it exploited the work.).

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2.

Plaintiff has standing to sue for infringement of Khosara


Khosara because he is the heir of the author and continues
to own the right to receive royalties from its exploitation.

Here, the district court found that plaintiff is the rightful heir of the creator
of Khosara Khosara (ER 1439) and continues to this day to own the right to
receive royalties from its exploitation (ER 24-26). Therefore, even applying the
district courts erroneous interpretation of Egyptian law and the 2002 agreement
(which this Court should not adopt for the reasons explained above), plaintiff still
remains a beneficial owner with standing to bring an infringement suit.
For any or all of the three alternative reasons detailed above, the district
courts determination that plaintiff lacks standing as a matter of law should be
reversed, and the case should be remanded for a new trial. The scope of the new
trial is now discussed.
III.

The Case Should be Remanded Solely for a Determination of Damages


Because Plaintiff Should be Entitled to Judgment as a Matter of Law
on Liability.
A.

The Elements of a Copyright Infringement Claim.

A copyright plaintiff must prove (1) ownership of the copyright; and (2)
infringement that the defendant copied protected elements of the plaintiffs
work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). The

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second element is usually proven by showing that the defendant had access to
the plaintiffs work and that the two works are substantially similar. Id.
To be liable, a defendant need not copy the entirety of the copyrighted work.
Even if a copied portion be relatively small in proportion to the entire work, if
qualitatively important, the finder of fact may properly find substantial similarity.
Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987).
B.

Plaintiff Has Proven its Copyright Infringement Claim as a


Matter of Law.16
1.

Ownership.

As explained above, the district court already summarily adjudicated


ownership of the Khosara Khosara copyright in favor of plaintiff. (ER 1439)
Moreover, there is no dispute that plaintiff is an heir of the author of Khosara
Khosara and thus inherited co-ownership of the copyright. (ER 720, 1442-45.)
2.

Access.

There is no dispute that the creator of Big Pimpin had access to Khosara
Khosara. The creator of the music in Big Pimpin admitted that he used the
opening of Khosara Khosara to create Big Pimpin (ER 263-64), and recordings of
Big Pimpin expressly say the song contains elements from Khosara Khosara. (ER
860, 865.) Moreover, no reasonable juror could listen to the two songs and
16

Plaintiff raised this issue below at ER 785-97, 1043-63.

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conclude the creator of Big Pimpin did not use Khosara Khosara. (Compare
Audio Exhibit 4 with Audio Exhibits 127-28.) Finally, the strikingly similarity
between the music in the songs is an alternative way of proving access. Three
Boys Music Corp., 212 F.3d at 485.
3.

Substantial Similarity.

Any reasonable juror would conclude that the songs share substantially
similar protectable expression. (Compare Audio Exhibit 4 with Audio Exhibits
127-28; see also ER 157-68.) Indeed, the songs share identical expression. (Id.)
And there is no evidence that Hamdy copied the expression in Khosara Khosara
from a preexisting work. Thus, the works in issue share protectable expression.
4.

No License.

Nor can defendants prove they had a valid license to use Khosara Khosara
in Big Pimpin. That is so for two alternative reasons.
First, as explained supra, Hamdys family retained the sole right to make or
to authorize the making of derivative works. Absent a license from Hamdys
family (which defendant neither sought nor obtained), defendants had no valid
permission to use Khosara Khosara.
Second, the license that defendants purportedly received was actually a
covenant not to sue from EMI Music Arabia. EMI Music Arabia, however, did
not own the right to authorize changes to Khosara Khosara. The license from Sout

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el Phan conveyed to EMI Music Arabia solely the right to exploit sound
recording[s]. (ER 971) ((A) LICENSOR hereby grants by way of license to EMI
the sole and exclusive right throughout the Territory to exploit each and every
sound recording from the Catalogue during the Term as hereinafter appears, such
right to comprise the following . . .). The right to distribute a particular sound
recording, however, does not encompass the right to make a derivative work from
the underlying composition. Thus EMI Music Arabia did not own the right to
create derivative works and could not convey it.
In sum, this is a clear case of copyright infringement. The creator of Big
Pimpin took and used the hook from Khosara Khosara without permission. No
reasonable juror could conclude otherwise. The only issue on remand should be
the nature and scope of remedies for defendants infringement.
Nevertheless, to the extent this Court disagrees and remands for a trial on
both liability and damages, plaintiff proceeds to discuss a key pre-trial evidentiary
ruling that should be corrected prior to the new trial.
IV.

The District Court Erred in Prohibiting Plaintiff from Playing


Recordings of Khosara Khosara at Trial and in Limiting the Scope of
the Copyright in Issue to a Single Piece of Sheet Music.
The district court ruled in limine that plaintiff would be precluded from

playing recordings of Khosara Khosara. In other words, plaintiff could not play

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the excerpt of the Fata Ahlami movie wherein Khosara Khosara is performed or
the Khosara Khosara track from a collection of Hafezs greatest movie hits.
Relatedly, the district court ruled that the scope of Hamdys work was limited to
notes on a lead sheet identified as Exhibit 133 (which Hamdy himself did not
even write), as opposed to the music played in Fata Ahlami and Hafezs greatest
hits collection. In so ruling, the district court clearly erred.17
A.

The Best Evidence of Hamdys Composition is the Recordings of


Hafezs Performance of Khosara Khosara.

There is no dispute that Hamdy is the composer of the version of Khosara


Khosara that was performed by Hafez in the movie Fata Ahlami. That is so for
several reasons:
First, Defendants admitted as much when opposing Plaintiffs motion for
partial summary judgment on the issue of copyright ownership. (ER 1442-43.)
Second, Hamdy is listed as the composer of Khosara Khosara in the Fata
Ahlami movie credits and in the liner notes to a cassette compiling Hafezs greatest
hits. (ER 142-44, 904-05, 1013-14.)
Third, there is undisputed evidence that the recordings of Khosara Khosara
are the best evidence of Hamdys creation. Dr. Scott Marcus, one of the foremost
American experts on Egyptian music, confirmed that fact. (ER 142-53, 156-57.)
17

Plaintiff raised this issue below at ER 31, 1173-82.

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Finally, as a matter of law, the the song or tangible medium of expression


embodied in the recording is the musical composition. T.B. Harms Co. v. Jem
Records, Inc., 655 F. Supp. 1575, 1576 n.1 (D.N.J. 1987). Thus, the copyright of
a composer of a symphony or song should cover also conversions of the piece into
scores for different instrumentation, as well as into recordings of performances.
Authors Guild, Inc. v. Google, Inc., 804 F.3d 202, 225 (2d Cir. 2015).
It is unclear why the district court disregarded the evidence and legal
principles above and instead limited the scope of Hamdys work to the lead sheet
identified as Exhibit 133. Making matters worse and more bizarre, Hamdy did not
physically pen the notes on the lead sheet. It was prepared after he had passed
away. (ER 1193-94.)
Regardless, as the evidence and law cited above show, there can be no
dispute that Hamdy owned (and that his heirs now own) the copyright in the
composition of the song performed in Fata Ahlami and Hafezs greatest hits. At
the least, a reasonable juror could so conclude.
B.

Plaintiff Should Have Been Permitted to Play Recordings of


Khosara Khosara at Trial.

There was no valid reason to exclude the recordings of Khosara Khosara


i.e., the best evidence of Hamdys work from the trial.

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A music composition is like a blueprint. It tells the performer how to create


certain sounds that combine to create a particular song. Therefore, judges
routinely listen to the songs in issue when evaluating infringement of a musical
composition. In fact, this Court, in reversing the same district court that presided
over this case, approved of the plaintiffs experts analysis that was based entirely
on an aural assessment of recordings of the compositions in issue. See Swirsky
v. Carey, 376 F.3d 841, 845 n.5 (9th Cir. 2004).18 And this Court, in a decision
earlier this year, again relied on a recording of the plaintiffs composition when
evaluating whether the composition had been infringed. See VMG Salsoul, LLC v.
Ciccone, __ F.3d __, 2016 WL 3090780, at *5 (9th Cir. June 2, 2016) (After
listening to the recordings, we conclude that a reasonable jury could not conclude
that an average audience would recognize the appropriation of the composition.).
It is true, as the district court noted, that courts, including this one, have
cautioned that a music composition and sound recording are not necessarily the
same thing. For example, in a case involving substantial improvisation by the
performer, it is important to filter out the creativity attributable solely to the
performer and not to the composer. See Newton v. Diamond, 388 F.3d 1189, 1194-

18

Indeed, many composers like the plaintiffs in Swirsky do not compose on


sheet music. Does that mean that their creations are not entitled to copyright
protection or that they should be hindered in proving infringement of their
copyrights? Of course not.
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95 (9th Cir. 2004). No case however holds that the recording of a song cannot be
considered in a music composition infringement case.
In fact, we need not look any further than the Copyright Office itself to
determine whether a sound recording can be used as evidence of the musical
composition underlying it. When registering a musical composition with the
Copyright Office, a recording of the composition is a valid deposit; the recording
itself serves as the sole and valid evidence of the composition. See 37 C.F.R.
202.20. Thus, when the Copyright Office wants to examine a musical
composition, it often listens to a recording of the composition. If the Copyright
Office does it, why shouldnt the jury?
In sum, the district court clearly erred in precluding the jury from hearing
the song that was allegedly infringed in this copyright infringement case.
V.

The Case Should be Reassigned to a Different Judge on Remand.


A.

This Court Has Discretion to Reassign the Case to a Different


District Judge on Remand.

Although unusual, this Court has discretion to reassign a case to a


different district judge on remand. Nozzi v. Housing Authority of Los Angeles, 806
F.3d 1178, 1203 (9th Cir. 2015). A finding of actual bias is not required.
Krechman v. County of Riverside, 723 F.3d 1104, 1111 (9th Cir. 2013). Rather, all
that is necessary is a finding that reassignment would help preserve the

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appearance of justice. Id. at 1112 (reassignment warranted if either of first two


factors is applicable).
B.

This Court Should Reassign the Case to a Different District Judge


on Remand.

Reassignment here is warranted to preserve the appearance of justice and


to ensure this case which already will be over a decade old by the time of remand
is resolved efficiently and fairly. That is so for several reasons.

The district court called plaintiffs counsels assertion ridiculous in


front of the jury. (ER 669.) Although the court later apologized (ER
670), a comment of that nature is difficult for a juror to forget.

The district court sustained two dozen defense objections before


defense counsel even stated a ground for the objection. (ER 128, 129,
153, 168, 200, 205, 230, 239, 240, 277, 414, 417, 474, 480, 481, 483,
577, 578, 582, 617, 639, 695, 706, 707.)

The district court made gratuitous comments about the clarity,


relevance, or value of certain of plaintiffs counsels questions. (ER
168, 237, 481, 483, 484, 575, 576, 578, 580, 582, 605, 639, 668, 669,
693, 695, 706, 707.)

The district court displayed skepticism as to why plaintiff had


changed his mind about coming to the trial despite undisputed

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evidence from plaintiffs doctor that plaintiff has a serious medical


problem that prevents him from traveling. (ER 314-15.)

The district court criticized plaintiffs counsel for having a different


understanding of which issues would be tried to the jury, even though
the district court itself still did not know which issues would be tried
to the jury. (ER 316.)

The district court denied plaintiff the opportunity to take a single


deposition of the defendants for over six years.

The district court allowed the case to take over eight years to get to
trial.

In isolation, many of the aforementioned would be cause for concern, but


not reassignment. In combination, they establish that reassignment is the best
available option to ensure the case is resolved fairly and expediently following
remand.
Dated: August 16, 2016

Respectfully submitted,
BROWNE GEORGE ROSS LLP
Peter W. Ross
Keith J. Wesley
Corbin K. Barthold

By:

/s/ Keith J. Wesley


Keith J. Wesley
Attorneys for Plaintiff-Appellant
Osama Ahmed Fahmy
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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)


AND NINTH CIRCUIT RULE 32-1
Pursuant to F.R.A.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached
opening brief is proportionately spaced, has a typeface of 14 points or more and
contains 13,982 words, including footnotes. Counsel relies on the word count of
the computer program used to prepare this brief.

Dated: August 16, 2016

Respectfully submitted,
BROWNE GEORGE ROSS LLP
Peter W. Ross
Keith J. Wesley
Corbin K. Barthold

By

/s/ Keith J. Wesley


Keith J. Wesley
Attorneys for Plaintiff-Appellant
Osama Ahmed Fahmy

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STATEMENT OF RELATED CASES


Appellant is aware of no related case to disclose pursuant to Ninth Circuit
Rule 28-2.6.

Dated: August 16, 2016

Respectfully submitted,
BROWNE GEORGE ROSS LLP
Peter W. Ross
Keith J. Wesley
Corbin K. Barthold

By

/s/ Keith J. Wesley


Keith J. Wesley
Attorneys for Plaintiff-Appellant
Osama Ahmed Fahmy

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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
APPELLANTS OPENING BRIEF with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on August 16, 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: August 16, 2016

681160.1

/s/ Keith J. Wesley


Keith J. Wesley