Legal battle over Jay Z's sampling on Big Pimpin' comes to head after eight years

Play a few seconds of the backing track for Big Pimpin’, and it might evoke scenes from the accompanying music video, of a younger Jay Z puffing a cigar, posing on a yacht flanked by bikini-clad women.

For Egyptians, however, and especially those of a certain age, the same few notes might conjure a different image, of Abdel Halim Hafez, the pouting boyish crooner whose songs and films epitomised Egypt’s cultural renaissance in the 1950s and 60s.

Hafez sung the original song, Khosara Khosara, in a 1960 film titled Fata Ahlami. Hafez and the composer of the song, Baligh Hamdy, are dead, but Hamdy’s heir has been suing Jay Z and his producer Timbaland since 2007, claiming that the song was used without the proper licenses.

After a judge’s ruling in a California court on 30 March, the almost eight-year legal battle is finally heading to trial, set for October. Regardless of the outcome, the case speaks to a set of overlapping debates about intellectual property, sampling in pop music and western artists’ use of Middle Eastern melodies.

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The plaintiff and driving force behind the case is Osama Ahmed Fahmy, who says he is Baligh Hamdy’s heir. He claims that the record label, EMI Arabia, who acquired the rights from an Egyptian label, did not have the right to sublicense the song for use in Big Pimpin’.

Beyond the complex copyright issues, the case is also about cultural sensitivities. Fahmy’s lawsuit also argues that Jay Z and Timbaland reused Khosara Khosara in an offensive way that amount to a violation of the composer’s moral rights under Egyptian law.

“They used it with a song that even by Jay Z’s own admission is very vulgar and base,” said Fahmy’s lawyer, Keith Wesley, speaking by phone from Los Angeles. “That’s really why this is so significant to my client. They not only took music without paying. They’re using it in a song that is, frankly, disgusting.”

Through his lawyers, Fahmy has made the case that Jay Z’s lyrics are a distortion of the original sensibility of Khosara Khosara. A motion filed by the plaintiff in court this year takes issue with lyrics that, it is claimed, do not imply the respectful treatment of women.

“This case is a perfect example of the importance of the requirement that a copyright owner be afforded the opportunity to consider any potential sublicense of his copyright,” the motion says.

Years after the fact, Jay Z has suggested that the song no longer reflects his views on gender. “There’s a steady growth in the conversations that’s being had as it pertains to women, you know, as I grew,” he told an interviewer from US National Public Radio (NPR) in 2010.

Wael El-Mahallawy, the director of the music programme at the American University in Cairo said the matter of whether Jay Z violated cultural sensitivities in Egypt is a question that would split along generational lines.

“It gives it a new style, a new flavour. I think it’s a good idea,” he said. “It will make it more famous, more acceptable for young people.

“It’s not acceptable for these old guys. They won’t accept a new style, a new flavour of music.”

Big Pimpin’ is not the only song to sample Middle Eastern music in order to introduce different beats to western audiences. Madonna samples the Lebanese singer Fairuz singing Christian liturgy on Erotica.

The jagged strings in the Chemical Brothers’ 2005 song Galvanize are sampled from the Moroccan singer Najat Aatabou. Timbaland himself has produced a string of Middle Eastern-infused tracks.

Some argue the use of samples from the Arab world is a case of healthy cultural cross-pollination, but critics allege exploitation.

“To the extent that the song got its consumers to appreciate Abdel Halim it’s a useful global crossover,” said Ted Swedenburg, a professor of anthropology at the University of Arkansas and a scholar on Middle Eastern popular music, referring to Big Pimpin’.

On the other hand, he said the song was a case of a rapper “escaping the punishing and very expensive regime of sampling in the west, so exploiting the apparent absence of copyright on an Abdel Halim song.”

Whatever the merits of the lawsuit, one consequence is that it will remind the public of the original source of the infectious, instantly recognisable hook in Jay Z’s hit.

“The better strategy, if you wanted to make the case for Abdel Halim, would be to accept that Big Pimpin’ is a great song, even if one doesn’t love the lyric,” said Swendenburg, “and to argue that what really makes it great is the Abdel Halim sample.”