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On Friday, Linkin Park’s bassist, Dave Ferrell, testified in a copyright infringement suit accusing Jay Z, producer Timbaland, and others of illegally sampling an Egyptian ballad in Jay Z’s song “Big Pimpin.’” At issue in the trial is whether the defendants had the necessary rights to layer rap lyrics over the nearly 60-year-old melody. The family of the late Egyptian composer Baligh Hamdy claims Jay Z used the ballad “Khosara, Khosara” without permission for his 1999 chart-topping song. Ferrell testifying his group chose to do a mashup song with Jay Z because they were a “huge fan” of the rapper, and ended up doing a whole album of such songs together, blending tracks from existing songs together into new, blended compositions. He said the band wouldn’t have released a mash-up of that song and their tune “Papercut” if they thought it infringed.
Because the songs used were already pre-recorded, Linkin Park never made any changes to any of Jay Z’s songs, Farrell testified. Under cross examination, Farrell was asked if the band had done anything to stop sales of its mashup with Jay Z, now knowing a copyright claim had been made. “Not to my knowledge, no,” the Linkin Park bassist said. Asked the same question Friday, Antoinette Trotman, vice president of legal affairs for Universal, East Coast, said the company saw no reason to stop sales with the status of the claim still pending. “We could continue to exploit the song,” Trotman said. “We get claims all the time and not all claims have merit.” Part of Friday’s trial shifted from discussion about song rights to a note-by-note comparison of the 1957 Egyptian ballad and the 1999 rap hit by a musicologist. Lawrence Ferrara, a New York University professor of music, said he’s been called as an expert in music copyright infringement cases involving musicians ranging from Elton John to Lady Gaga and Kanye West. Ferrara said while four measures of “Khosara, Khosara,” were found in “Big Pimpin’,” all of the notes within those measures were not the same. He also asserted that the notes that were similar were not distinct. “They are musical building blocks, what I consider to be commonplace,” Ferrara said, later calling the similar notes, “trite, minimal.” Jay Z and Timbaland had taken a “fragment” of the Egyptian melody and “built upon it to create a whole new work,” Ferrara said.
Attorney Peter Ross of Browne George Ross LLP represents Osama Ahmed Fahmy, Hamdy’s nephew, who filed the copyright infringement suit in 2007. During cross examination on Friday, Ross said under Ferrara’s definition every book in the English language could be similarly dismissed since they use the same words. Then Ross sang eight notes and asked if the expert would consider them trite. “There’s nothing trite about the opening notes of Beethoven’s Fifth Symphony,” Ferrara said. Fahmy, who filed suit in 2007, has argued that none of the licensing agreements allow changes to the song, which would be a violation of the composer’s “moral rights” under Egyptian law.