(CN) – A songwriter who agreed that his Latin adaptation of the song “Wavin’ Flag” constituted for-hire work cannot sue Coca-Cola for copyright infringement, a Miami federal judge ruled.
Coca-Cola hired songwriter and producer Rafael Vergara Hermosilla to create a Latin adaptation of the K’naan song, “Wavin’ Flag,” for the company’s 2010 World Cup marketing campaign. Vergara’s adaptation, which included lyrics in Spanish, combined a literal translation of the English lyrics with other words that had been significantly altered from the original version.
Universal Music Latin America produced a version of Vergara’s song and featured it in a video promoting Coca-Cola during the World Cup.
In early 2010, Coca-Cola denied Vergara’s request for songwriting royalties, and it asked him to surrender his copyright interest in the work. Vergara later e-mailed a Coca-Cola marketing officer with new terms. Those terms said that as long as Vergara got production credit for the work, he would accept a dollar as payment for considering the adaptation as “a work for hire.”
The Coca-Cola executive agreed, saying, “You can count on the credits on the track.” But after the executive resent the original contracts that did not reflect Vergara’s credit stipulation, Vergara purported to unilaterally revoke his “proposal” and filed a copyright infringement suit.
U.S. District Judge Michael Moore granted Coca-Cola summary judgment against the suit in an eight-page order on Feb. 23. The decision states that Vergara’s “proposal,” and the executive’s acceptance of the terms in reply, unequivocally transferred Vergara’s rights to the adapted lyrics to Coca-Cola.
Moore pointed out that Vergara’s entitlement to royalties is “irrelevant to the question of whether a copyright is possessed.”
Coca-Cola’s failure to lay out newly agreed-upon terms in the contracts did not cancel the parties’ agreement, the decision states.
“Simply because the parties contemplated the drafting of a subsequent formal, written contract, does not denote that they did not intend to be bound immediately,” Moore wrote, drawing on a precedent set by the 11th Circuit.
Moore found that Coca-Cola is entitled to summary judgment, since the company “cannot be sued based on a copyright interest it owns.”
The court lifted a preliminary injunction previously issued against Coca-Cola, which Moore said was imposed before he got a chance to look at “the crucial email” that showed Coca-Cola accepted Vergara’s offer.