Case 2:07-cv-05715-CAS-PJW Document 763 Filed 11/01/18 Page 1 of 25 Page ID
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`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
` No. 16-55213
`
`D.C.
`No. 2:07-cv-
`05715-CAS-
`PJW
`
`
`AMENDED
`OPINION
`
`OSAMA AHMED FAHMY,
`Plaintiff-Appellant,
`
`
`
`v.
`
`
`JAY-Z, AKA Shawn Carter;
`TIMOTHY MOSELY, FKA Timbaland;
`KYAMBO JOSHUA; ROB BOURDON;
`BRAD DELSON; MIKE SHINODA;
`DAVE FARRELL; JOSEPH HAHN;
`CHESTER BENNINGTON; BIG BAD MR
`HAHN MUSIC; CHESTERCHAZ
`PUBLISHING; EMI BLACKWOOD
`MUSIC, INC.; EMI MUSIC
`PUBLISHING LTD.; KENJI KOBAYASHI
`MUSIC; LIL LULU PUBLISHING;
`MACHINE SHOP RECORDINGS, LLC;
`MARCY PROJECTS PRODUCTIONS II,
`INC.; MTV NETWORKS ENTERPRISE,
`INC.; NONDISCLOSURE AGREEMENT
`MUSIC; PARAMOUNT HOME
`ENTERTAINMENT, INC.; PARAMOUNT
`PICTURES CORPORATION; RADICAL
`MEDIA; ROB BOURDON MUSIC; ROC-
`A-FELLA RECORDS, LLC;
`TIMBALAND PRODUCTIONS, INC.;
`UMG RECORDINGS, INC.; UNIVERSAL
`MUSIC AND VIDEO DISTRIBUTION,
`INC.; WARNER MUSIC, INC.,
`Defendants-Appellees.
`
`

`

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`FAHMY V. JAY-Z
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`Appeal from the United States District Court
`for the Central District of California
`Christina A. Snyder, District Judge, Presiding
`
`Argued and Submitted December 8, 2017
`Pasadena, California
`
`Filed May 31, 2018
`Amended November 1, 2018
`
`Before: Carlos T. Bea, Consuelo M. Callahan,
`and Paul R. Kelly,∗ Circuit Judges.
`
`Opinion by Judge Bea
`
`
`
`* The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
`the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
`
`

`

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`FAHMY V. JAY-Z
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`SUMMARY**
`
`Copyright
`
`3
`
`The panel affirmed the district court’s grant of judgment
`as a matter of law in favor of rapper Jay-Z and other
`defendants on copyright infringement claims brought by the
`heir to Egyptian composer Baligh Hamdy’s copyright in a
`1957 arrangement of the song Khosara.
`
`Jay-Z used a sample from the arrangement in the
`background music to his hit single Big Pimpin’.
`
`The district court held that the heir, Osama Ahmed
`Fahmy, lacked standing to bring the copyright claims. First,
`the district court held that Egyptian law recognizes a
`transferable right of “adaptation,” such that when Fahmy
`transferred “all” of his economic rights to Mohsen
`Mohammed Jaber in a 2002 agreement, the transfer included
`the right to create derivative works adapted from Khosara.
`The district court concluded that the right of adaptation is an
`economic right under Egyptian law, not an inalienable moral
`right. Second, the district court held that the conveyance of
`rights contained in the 2002 agreement complied with the
`requirements of Article 149, the Egyptian law governing the
`transfer of economic rights. Accordingly, the 2002
`agreement successfully conveyed a right of adaptation of
`Khosara to Jaber. Third, a reservation of rights found at the
`end of the 2002 agreement referred to the right to receive
`
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

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`FAHMY V. JAY-Z
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`4
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`royalties, and thus did not confer standing on Fahmy to bring
`a claim of copyright infringement.
`
`Affirming, the panel concluded (1) that Egyptian law
`recognizes a
`transferable economic right
`to prepare
`derivative works; (2) that the moral rights Fahmy retained
`by operation of Egyptian law were not enforceable in U.S.
`federal court; and (3) that, even if they were, Fahmy had not
`complied with the compensation requirement of Egyptian
`law, which did not provide for his requested money
`damages, and which provided for only injunctive relief from
`an Egyptian court. The panel held that the district court
`properly interpreted the 2002 agreement as conveying to
`Jaber the economic right to create derivative works. In
`addition, the fact that Fahmy retained the right to royalties
`did not give him standing to sue for copyright infringement.
`
`
`
`COUNSEL
`
`
`Keith J. Wesley (argued), Corbin K. Barthold, and Peter W.
`Ross, Browne George Ross LLP, Los Angeles, California,
`for Plaintiff-Appellant.
`
`Christine Lepera (argued), Mitchell Silberberg & Knupp
`LLP, New York, New York; David A. Steinberg, Mitchell
`Silberberg & Knupp LLP, Los Angeles, California; Andrew
`H. Bart, Jenner & Block LLP, New York, New York; for
`Defendants-Appellees.
`
`
`
`
`
`

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`FAHMY V. JAY-Z
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`OPINION
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`5
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`BEA, Circuit Judge:
`
`Days before the turn of the new millennium, rapper Jay-
`Z released an album containing his soon-to-be hit single Big
`Pimpin’. The background music to that track used a sample
`from a 1957 arrangement by Egyptian composer Baligh
`Hamdy. Today, we are faced with the question whether the
`heir to Hamdy’s copyright (Appellant Fahmy) may sue Jay-
`Z for infringement based solely on the fact that Egyptian law
`recognizes an inalienable “moral right” of the author to
`object to offensive uses of a copyrighted work. We hold that
`he cannot.
`
`I
`
`A
`
`In 1957, Baligh Hamdy composed the music to the song
`Khosara for the Egyptian movie Fata Ahlami. The song
`quickly became popular in Egypt. In 1968, Hamdy agreed
`to transfer certain license and distribution rights to an
`Egyptian recording company, Sout el Phan.1 When Hamdy
`died in 1993, his heirs inherited whatever rights he retained
`in Khosara. Appellant Osama Ahmed Fahmy (“Fahmy”) is
`one of these heirs.
`
`In August 1995, Hamdy’s heirs, including Fahmy, who
`acted as
`the heirs’ representative, executed another
`agreement with Sout el Phan, confirming the continuing
`
`
`1 The agreement was written in Arabic. A certified translation can
`be found in the record.
`
`

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`FAHMY V. JAY-Z
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`the 1968
`through
`transferred
`the rights
`viability of
`agreement.2 In December 1995, Sout el Phan transferred
`certain of its exclusive rights to a company called EMI
`Music Arabia (“EMI”). This agreement transferred to EMI,
`among other things, “the sole and exclusive right to protect,
`publish and/or sub-publish songs” contained on records in
`the Sout el Phan catalog, including Khosara. After the
`December 1995 agreement, EMI possessed the rights,
`previously held by Sout el Phan, to license and distribute
`recordings of Khosara in every country but Egypt. Sout el
`Phan retained the rights to license and distribute in Egypt.
`
`Appellees enter the picture a few years later. In 1999,
`rapper Shawn Carter (professionally known as, “Jay-Z”) and
`music producer Timothy Mosley (professionally known as,
`“Timbaland”) produced a hit song, Big Pimpin’, that used
`portions of Khosara as a background track to Jay-Z’s rap
`lyrics.3 They thought the music was part of the public
`domain and did not obtain permission to use it. EMI
`disagreed. As a result, in late 2000, EMI asserted its rights
`to the music, and Mosley paid EMI $100,000 for the right to
`exploit Khosara in Big Pimpin’.
`
`Fahmy became aware of Big Pimpin’ in December 2000.
`As a result, he authorized a U.S.-based intellectual property
`attorney, David Braun,
`to
`investigate a copyright
`infringement claim against Jay-Z. According to Fahmy, an
`
`2 Also originally in Arabic, a certified translation of the 1995
`agreement is in the record. The parties agree that the 1995 agreement
`reaffirmed rights transferred in the 1968 agreement.
`
`3 The Defendants-Appellees in this lawsuit include a long list of
`music producers and record labels, all of whom were involved in the
`production and/or distribution of various iterations of Big Pimpin’. For
`convenience, we refer to the Appellees collectively as “Jay-Z.”
`
`

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`FAHMY V. JAY-Z
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`attorney at EMI told Braun that EMI had a valid license to
`exploit Khosara but refused to disclose the agreement to
`Braun. Braun eventually declined to represent the Hamdy
`heirs.
`
`7
`
`Around 2001, control of Sout el Phan’s musical catalog
`passed to another Egyptian entity called Alam el Phan. In
`2002, independent of the agreements previously mentioned,
`Fahmy, as representative of the Hamdy heirs, including
`himself, signed an agreement with the owner of Alam el
`Phan, Mohsen Mohammed Jaber.
` The agreement
`transferred to Jaber certain rights to Khosara. Exactly which
`rights were transferred in this 2002 Agreement4 is the central
`dispute in this lawsuit. The agreement, in relevant part,
`reads as follows:
`
`I, Osama Ahmed Fahm[y] . . . in person and
`in my capacity as the representative of the
`heirs of the late [Baligh Hamdy] hereby
`assign to Mr. Mohsen Mohammad Jaber . . .
`and to whoever he selects, the right to print,
`publish and use the music of the songs stated
`in this statement [including Khosara] on all
`currently known audio and/or visual of
`videos, performances, records, cassette tapes,
`and cartridges in addition to all the modern
`technological and digital means such as the
`internet, telephones, satellites, or any other
`means that may be invented in the future
`including musical re-segmentation and
`alteration methods while maintaining the
`original segment of
`the music.
` This
`
`4 Like the other agreements, the 2002 Agreement was written in
`Arabic. A certified translation can be found in the record.
`
`

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`FAHMY V. JAY-Z
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`grants Mr. Mohsen
`authorization
`Mohammad Jaber solely/or to whoever he
`selects, the right to publish and sell these
`songs using all the means available in all
`parts of the world. I do hereby approve, by
`signing this authorization to pledge not to
`dispose once again of
`this music, or
`republish, sell, or present them to any other
`individual, company, authority, or institution.
`
`I do hereby further state that by signing this
`authorization and waiver of these pieces of
`music to Mr. Mohsen Mohammad Jaber, I
`would have authorized him solely and/or
`whoever he selects, fully, and irrevocably
`the right to use this music in whatever way
`he deems necessary.
` Mr. Mohsen
`Mohammad Jaber or his successors are
`solely the owners of the financial usage
`rights stated in [Article 147 of the 2002
`Egyptian Copyright Law5] for the pieces of
`music
`listed hereinafter
`in
`the Arab
`Republic of Egypt and the whole world
`[including Khosara], and the use includes all
`the usage means and methods whether those
`currently available or those that will be
`invented in the future and whether it was
`audio, visual or audiovisual including the
`new digital and technology means during the
`
`
`5 The 2002 Agreement uses the phrase “Law No. 82 for the year
`2002.” But that phrase is a reference to Article 147 of the 2002 Egyptian
`Copyright Law.
`
`

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`FAHMY V. JAY-Z
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`whole legal protection period specified by the
`law.
`
`. . .
`
`Mr. Mohsen Mohammad Jaber and his
`successor become the sole publisher of the
`melodies of these songs in all the current
`publishing means and in any way he deems
`whether it was direct or indirect. Mr. Mohsen
`Mohammad Jaber also has the right to
`transfer all these rights or some of them or
`dispose
`them
`to another company or
`institution
`using
`any
`trademark
`he
`selects. . . .
`
`I [Appellant] did also fully assign to Mr.
`Mohsen Mohammad Jaber all our rights
`clarified in [the 1968 Agreement] between
`Sout El Phan Company and the musician
`[Baligh Hamdy], or any other contracts
`and/or rights pertaining to those pieces of
`music. As such, signing on this document is
`considered as a final quittance from any of
`our dues from Sout El Phan, and Mr. Mohsen
`Jaber, and his successor, has the right to
`request and receive any financial dues
`relevant to this music from any party . . . .
`
`I [Appellant] received the amount of 115,000
`(only one hundred fifteen thousand Egyptian
`Pounds) for this waiver and declaration while
`
`

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`FAHMY V. JAY-Z
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`maintaining our rights in respect of the public
`performance and mechanical printing.
`
`(Emphasis added).
`
`B
`
`Notwithstanding this 2002 Agreement, Fahmy filed the
`instant lawsuit against Jay-Z in 2007, claiming to have
`retained certain rights to the Khosara copyright. The
`complaint contained three causes of action for copyright
`infringement6 under Section 106(2) of the Copyright Act7,
`and a state law claim for unfair business practices. The claim
`for unfair business practices was subsequently dismissed and
`is not at issue in this appeal.
`
`On December 9, 2011, the district court granted Jay-Z’s
`motion for partial summary judgment, holding that based on
`the Copyright Act’s “rolling” statute of limitations Fahmy
`“may recover damages from any infringement only within
`three years prior to the filing of his lawsuit—i.e., from
`August 31, 2004 to the present.” That order is not
`challenged in this appeal.
`
`
`6 The three causes of action relate to three different infringements,
`all of which relate to Jay-Z’s Big Pimpin’. The first was based on the
`initial publication of Big Pimpin’; the second, based on a collaborative
`remake of Big Pimpin’, performed and published with the band Linkin
`Park; and the third, based on Fade to Black, a film which depicts Jay-Z
`performing Big Pimpin’. With respect to our analysis here, the claims
`are identical.
`
`7 Section 106(2) of the Copyright Act, 17 U.S.C. § 106(2), gives
`copyright owners the “exclusive rights to do and to authorize . . .
`prepar[ation of] derivative works based upon the copyrighted work.”
`
`

`

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`FAHMY V. JAY-Z
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`11
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`On August 12, 2013, the district court granted Jay-Z’s
`motion for summary judgment based on the doctrine of
`laches, holding that Fahmy’s more than six-year delay in
`filing his complaint after hearing of the infringement was
`unreasonable and prejudiced Jay-Z. However, on May 19,
`2014, the Supreme Court held in a different case that laches
`cannot be invoked to preclude copyright claims filed within
`the limitations period. See Petrella v. Metro-Goldwyn-
`Mayer, Inc., 134 S. Ct. 1962, 1967 (2014). Thereafter, the
`district court granted Fahmy’s motion for reconsideration
`and vacated its summary judgment order to the extent it
`barred certain claims based on laches.
`
`On September 24, 2015, the district court ruled on
`several pretrial motions. First, it granted Jay-Z’s motion in
`limine to prohibit Fahmy from playing sound recordings of
`Khosara as evidence of the copyright. The court held that
`“[p]resenting the sound recordings at trial carries a
`significant risk of confusing and misleading the jury,” which
`was “particularly problematic because [Fahmy] admits that
`his copyright does not include the 1992 recording [of
`Khosara].”8 Second, the court granted Fahmy’s motion to
`bifurcate the liability and damages phases of the trial. Third,
`the court denied Jay-Z’s request to resolve at the outset of
`trial issues of foreign law, including whether the 2002
`agreement between Fahmy and Jaber “effectuated a
`complete transfer of plaintiff’s rights in Khosara, therefore
`denying [Fahmy] standing to bring the suit.” The court held
`that, because “neither party had presented expert testimony
`regarding the meaning of the 2002 agreement under
`
`
`8 Fahmy filed a motion to reconsider this ruling at trial, which was
`denied.
`
`

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`FAHMY V. JAY-Z
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`Egyptian law,” there remained “genuine issues of fact as to
`whether plaintiff conveyed all of his rights.”
`
`Trial commenced on October 13, 2015. The first phase
`of the bifurcated trial (liability) concluded on October 20,
`2015. That same day, Jay-Z filed a motion under Federal
`Rules of Civil Procedure 50 and 52 for judgment as a matter
`of law, asking the court to grant judgment in his favor on the
`ground that Fahmy lacked standing to bring the copyright
`claims. Fahmy also filed a Rule 50 motion for judgment as
`a matter of law, arguing that he had established Jay-Z’s
`liability under the Copyright Act.
`
`On October 21, 2015, the court entered an order granting
`Jay-Z’s motion for judgment as a matter of law. Because the
`standing issue decided the case, the court declined to reach
`Fahmy’s motion for judgment as a matter of law.
`
`The district court decision proceeds in three parts, each
`of which is separately challenged by Fahmy. First, the court
`held that Egyptian law recognizes a transferable right of
`“adaptation,” such that when Fahmy transferred “all” of his
`economic rights to Jaber in the 2002 Agreement, that
`included the right to create derivative works adapted from
`Khosara. This first ruling included the holding that the right
`of adaptation is an economic right under Egyptian law, not
`an inalienable moral right.9 Second, the district court held
`that the conveyance of rights contained in the 2002
`Agreement complies with the requirements of Article 149,
`the Egyptian law governing the transfer of economic rights.
`Accordingly, the 2002 Agreement successfully conveyed a
`
`9 The parties agree that the district court’s application of Egyptian
`law here was proper because the 2002 Agreement was formed and
`executed in Egypt.
`
`

`

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`FAHMY V. JAY-Z
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`right of adaptation of Khosara to Jaber. Third, the district
`court held that the reservation of rights found at the end of
`the 2002 Agreement—i.e., the reservation of the “rights in
`respect of
`the public performance and mechanical
`printing”—refers to the right to receive royalties, and thus
`does not confer standing on Fahmy to bring a claim of
`copyright infringement.
`
`As a result of the foregoing determinations, the district
`court granted Jay-Z’s motion for judgment as a matter law.
`Fahmy appealed.
`
`II
`
`We review de novo the district court’s grant of judgment
`as a matter of law. Electro Source, Inc. v. United Parcel
`Serv., Inc., 95 F.3d 837, 838 (9th Cir. 1996). Whether a party
`has standing under the Copyright Act to sue for infringement
`and whether the district court correctly interpreted and
`applied foreign law are also reviewed de novo. Minden
`Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1002
`(9th Cir. 2015) (Copyright Act); Brady v. Brown, 51 F.3d
`810, 816 (9th Cir. 1995) (foreign law).
`
`III
`
`A
`
`To have standing to sue for the copyright infringement
`alleged to have been done by Jay-Z’s adaptation of Khosara,
`Fahmy must have retained the exclusive right to prepare
`derivative works of Khosara, such as Big Pimpin’.10 Fahmy
`
`10 See 17 U.S.C. § 106 (listing the right “to prepare derivative
`works” among the bundle of “exclusive rights” vested in the owner of
`the copyright); see also § 201(d) (making each exclusive right
`
`

`

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`FAHMY V. JAY-Z
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`advances three alternative arguments for why he has retained
`that right. First, he argues that, under Egyptian law, it is
`impossible to transfer the right to prohibit derivative works
`because it is a right subsumed within Egyptian “moral
`rights,” and is thus inalienable. Whether the terms of the
`2002 Agreement purport to convey it or not, Fahmy insists
`that he retains the right to prohibit derivative works. Second,
`he argues that, even if transfer of the right were possible
`under Egyptian law, the 2002 Agreement does not clearly
`and unequivocally convey that right to Jaber, as required by
`Egyptian law for any such conveyance to be valid. Thus,
`Fahmy asks us to hold, as a matter of contract interpretation,
`that the 2002 Agreement did not convey to Jaber the right to
`prohibit others to make derivative works. Third, Fahmy
`contends that he has standing to sue for copyright
`infringement by virtue of his right to receive royalties, which
`is reserved in the 2002 Agreement. None of his arguments
`are availing.
`
`1
`
`Copyright holders in Egypt possess both moral and
`economic rights. As both parties concede, Egypt recognizes
`a moral right of “integrity,” which is wholly separate from a
`copyright holder’s economic rights, and which confers upon
`the author of the copyrighted material the right to object to
`those derivative works the author deems to be “distortions”
`or “mutilations” of the work, whether or not the relevant
`economic rights have been transferred. As the district court
`
`
`transferrable “in whole or in part” and entitling the “owner of any
`particular exclusive right . . . to all of the protection and remedies
`accorded to the copyright owner by this title”). A logical extension of
`the exclusive right to “prepare” derivative works is the right to prohibit
`others from doing so without permission.
`
`

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`FAHMY V. JAY-Z
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`the
`to protect
`intended
`explained, moral rights are
`“presumed intimate bond between authors and their works”
`and are based on the notion that an author’s work is “almost
`universally understood to be an extension of the author’s
`personhood.” In sum, moral rights protect the author’s
`personal or moral interests in the work and, for this reason,
`are not transferable to another party.
`
`By contrast, economic rights protect the author’s right to
`profit from his work. Article 147 of the 2002 Egyptian
`Copyright Law11 (“Article 147”) provides that the author of
`a copyrighted work and his successor have “the exclusive
`right to authorize or prevent any form of exploitation of his
`work, particularly
`through reproduction, broadcasting,
`rebroadcasting, public performance, public communication,
`translation, adaptation, rental, lending or making the work
`available to the public in any manner.” Furthermore, Article
`149 of the same Egyptian statute (“Article 149”) allows the
`owner of a copyright to transfer “all or some of his economic
`rights.”
`
`Fahmy contends that the exclusive right to prepare (and
`prohibit) derivative works is an inalienable moral right, not
`a transferable economic right. The record supports the
`proposition that an author’s moral rights in Egypt include
`some sort of limited right to object to supposed “distortions”
`or “mutilations” of the author’s work. But the record plainly
`does not support Fahmy’s argument that the specific right to
`prepare derivative works for profit is a non-transferable,
`non-economic right. Fahmy’s own expert testified that an
`“adaptation,” as used in Article 147, is the same thing as a
`
`11 The parties agree that the 2002 version of the Egyptian Copyright
`Law governs here because it was the operative statute at the time of the
`2002 Agreement.
`
`

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`FAHMY V. JAY-Z
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`“derivative work.” Therefore, the plain language of Article
`147, which grants authors
`the
`right
`to authorize
`“adaptations” of their copyrighted works, and Article 149,
`which gives authors the right to transfer “all or some” of their
`economic rights, combine for the straightforward conclusion
`that the right to prepare derivative works from the
`copyrighted work for profit can be transferred under
`Egyptian law.
`
`This conclusion would not necessitate the determination
`that Fahmy lacks standing to sue if the moral right to prevent
`“distortions” and “mutilations” were enforceable in the
`United States. However, Fahmy’s moral rights are not
`enforceable here for at least two reasons. First, federal law
`does not recognize the moral rights at issue here. The
`Copyright Act recognizes some moral rights, but only for
`certain “work[s] of visual art.” See 17 U.S.C. § 106A(a)
`(granting to “the author of a work of visual art” an
`inalienable right to prevent “distortion, mutilation, or other
`modification” which might prejudice the author’s “honor or
`reputation”); see also Garcia v. Google, Inc., 786 F.3d 733,
`746 (9th Cir. 2015) (recognizing that, “[e]xcept for a limited
`universe of works of visual art, . . . United States copyright
`law generally does not recognize moral rights”). No
`provision of the Act recognizes a moral right to prevent
`distortions or mutilations of copyrighted music.
`
`Moreover, while the Berne Convention12 offers some
`protection to foreign copyright holders in the United States,
`it does not help Fahmy. The Convention guarantees only
`
`
`12 The Berne Convention for the Protection of Literary and Artistic
`Works (“the Convention”)
`is “the principal accord governing
`international copyright relations.” Golan v. Holder, 565 U.S. 302, 306–
`07 (2012). The United States joined in 1989. Id. at 307.
`
`

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`FAHMY V. JAY-Z
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`that holders of foreign copyrights are afforded “the same
`protection” as holders of domestic copyrights, a policy
`known as the “principle of national treatment.” Creative
`Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 700 (9th
`Cir. 1995); Subafilms, Ltd. v. MGM-Pathe Commc’ns Co.,
`24 F.3d 1088, 1097 (9th Cir. 1994) (en banc) (quoting
`3 David Nimmer & Melville B. Nimmer, Nimmer on
`Copyright § 17.05 at 17–39 (1994) (“The applicable law is
`the copyright law of the state in which the infringement
`occurred, not that of the state of which the author is a
`national or in which the work was first published.”). In other
`words, parties to the Convention, such as the U.S., are not
`required to grant foreign copyright holders rights which are
`not granted to its domestic copyright holders. Since our
`federal law does not accord protection of moral rights to
`American copyright holders as to non-visual art, neither does
`it recognize Fahmy’s claim to moral rights. That Fahmy
`retains moral rights in Egypt does him no good here.
`
`Second, even if federal law recognized the moral rights
`of musical authors (or merely enforced foreign copyright
`law), the specific right Fahmy retains under Egyptian law
`entitles him only to injunctive relief in Egypt. The 2002
`Egyptian Copyright Law—after granting to authors the
`“perpetual[,] imprescriptible[,] and inalienable moral right[
`]” to prevent a “distortion or mutilation of the work” in
`Article 143—specifies the author’s recourse for violations of
`such rights in Article 144:
`
`Where serious reasons arise, the author alone
`shall have the right to request the court of first
`instance to prevent putting the work in
`circulation, withdraw
`the work
`from
`circulation or allow making substantive
`modification to the work, notwithstanding his
`
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`FAHMY V. JAY-Z
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`disposal of the economic exploitation rights.
`In such a case, the author shall, within a delay
`fixed by the court, pay in advance a fair
`compensation to the person authorised to
`exercise the economic rights of exploitation,
`failing which the court decision shall have no
`effect.
`
`Not only does the plain language of Article 144 grant
`exclusively injunctive relief, it also requires the author to pay
`“fair compensation to the person authorised to exercise the
`economic rights of exploitation.” Absent the payment of fair
`compensation, the court’s injunction has “no effect.” Thus,
`even in Egypt, Fahmy’s moral rights would be insufficient
`to win him anything but an injunction. And before he could
`obtain that, Fahmy would have to compensate Jay-Z fairly
`for limiting what would otherwise be an unencumbered
`economic right to exploit Khosara, a right for which Jay-Z
`already paid $100,000. The record is silent as to whether
`Fahmy has made any offer of such compensation. Indeed,
`such a proffered compensation is a far cry from the result
`Fahmy seeks here. Fahmy asks the court not simply to
`enjoin further use of Khosara but also to award him damages
`and a portion of Jay-Z’s “profits and gains.” We cannot do
`so. Assuming arguendo that Fahmy’s moral rights are
`enforceable in federal court, we could not grant the relief he
`seeks because he is not entitled to it—not even in Egypt.
`
`Expert testimony confirms this reading of Article 144.
`Jay-Z’s expert, Egyptian lawyer Abou Farhat, testified that
`“[m]oral rights . . . are applicable only in Egypt.” When
`asked what recourse an author has when his moral rights are
`violated, Farhat said an author may “go [into] Egypt before
`an Egyptian court and ask it to enforce” his right to enjoin
`distortions and mutilations.
` Farhat’s testimony thus
`
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`supports the above reading of Article 144 (i.e., that moral
`rights holders may seek only injunctive relief in Egypt) and
`comports with this court’s prior cases, which outline the
`“principle of national treatment” (i.e., that federal law treats
`foreign copyrights the same as U.S. copyrights). Farhat’s
`testimony also was not contradicted by the testimony of
`Fahmy’s expert, Dr. Hossam Mohammad Loutfi.
`Accordingly, like the district court, we credit Farhat’s
`testimony and find that the remedy set forth in Article 144 is
`for only injunctive relief in Egypt, and then only upon
`proffer of the compensation required in Egypt.13
`
`We thus conclude (1) that Egyptian law recognizes a
`transferable economic right to prepare derivative works;
`(2) that the moral rights Fahmy retained by operation of
`Egyptian law are not enforceable in U.S. federal court; and
`(3) that, even if they were, Fahmy has not complied with the
`compensation requirement of Egyptian law, which does not
`
`
`13 We emphasize that it is our prerogative under Federal Rule of
`Civil Procedure 44.1 to “consider any relevant material or source,
`including testimony,” as we do here, in determining a question of foreign
`law. See Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036,
`1039 (9th Cir. 1999) (“[I]t is neither novel nor remarkable for a court to
`accept the uncontradicted testimony of an expert to establish the relevant
`foreign law.”). Moreover, because a determination of foreign law “must
`be treated as a ruling on a question of law,” Fed. R. Civ. P. 44.1, our
`review of the district court’s determination is de novo. See de Fontbrune
`v. Wofsy, 838 F.3d 992, 996–1000 (9th Cir. 2016) (explaining that the
`“adoption of Rule 44.1 in 1966 marked a sea change in the treatment of
`foreign law . . . by making the process of ascertaining foreign law
`equivale