Judge Changes Mind, Rules for Coca-Cola in Suit by Songwriter

Miami Beach songwriter Rafael “Rafa” Vergara Hermosilla bested Coca-Cola in 2010 when a federal judge issued an injunction in Vergara's fight for credit for the international mega hit of “Wavin' Flag” in Spanish. But litigation is a marathon, not a sprint, and Coca-Cola recently won the more important Round 2. Federal District Judge K. Michael Moore, of the Southern District of Florida, has granted Coca-Cola's renewed motion for summary judgment, dismissing Vergara's claim of copyright infringement by noting that when Vergara wrote the Spanish translation version of “Wavin' Flag,” he assigned the rights of his work to Universal Music Group. Hermosilla v. The Coca-Cola Co., 10-21418.

In a footnote, however, the judge opened the door for a breach-of-contract suit by Vergara against the soft-drink maker for failing to deliver on a promise to give him songwriting credit. “This court takes no position on the issue of whether Coca-Cola has, in all instances, provided adequate attribution to Vergara under the assignment contract,” Moore wrote.

Moore relied on March 2010 e-mail exchanges between Vergara and Jose Puig, vice president of marketing at Universal Latin America. Vergara wrote that he was not motivated by money, and “my only request is that my credits are respected as producer and adapter of the Spanish versions.” Puig responded: “You can count on the credits on the track.”

In 2009, Vergara took “Wavin' Flag” by hip-hop artist K'naan and wrote Spanish lyrics to be used by Coca-Cola in its World Cup promotions. The song, sung by David Bisbal and K'naan, took off in Spanish-speaking markets, going to Number 1 in several countries. Vergara filed suit, seeking credit for the song. In June 2010, Moore issued a preliminary injunction ordering Coca-Cola to give Vergara credit. But in his latest eight-page ruling, the judge said the e-mails provided more information that allowed him to change his mind about the case.

The attorneys for Coca-Cola had no comment on the case. Vergara's attorneys, James Kaplan and Michael Foster, partners at Miami's Kaplan Zeena, say they will appeal the decision. “There are substantial flaws in the judge's decision,” Kaplan says. “It's very hard to understand how we went from likely to prevail in June to out of court in February based on one cryptic e-mail.”

Moore's decision came with the case three weeks away from trial. Moore said it was a mistake for the plaintiff to rely on the judge's previous decision. “Vergara also relies heavily on this court's prior ruling granting a preliminary injunction. This reliance is misplaced,” the judge wrote.

Now it's too late to give his client credit, Kaplan says. Only money will compensate for being left out of the credit for the big hit, he said.

Miami Beach songwriter Rafael “Rafa” Vergara Hermosilla bested Coca-Cola in 2010 when a federal judge issued an injunction in Vergara's fight for credit for the international mega hit of “Wavin' Flag” in Spanish. But litigation is a marathon, not a sprint, and Coca-Cola recently won the more important Round 2. Federal District Judge K. Michael Moore, of the Southern District of Florida, has granted Coca-Cola's renewed motion for summary judgment, dismissing Vergara's claim of copyright infringement by noting that when Vergara wrote the Spanish translation version of “Wavin' Flag,” he assigned the rights of his work to Universal Music Group. Hermosilla v. The Coca-Cola Co., 10-21418.

In a footnote, however, the judge opened the door for a breach-of-contract suit by Vergara against the soft-drink maker for failing to deliver on a promise to give him songwriting credit. “This court takes no position on the issue of whether Coca-Cola has, in all instances, provided adequate attribution to Vergara under the assignment contract,” Moore wrote.

Moore relied on March 2010 e-mail exchanges between Vergara and Jose Puig, vice president of marketing at Universal Latin America. Vergara wrote that he was not motivated by money, and “my only request is that my credits are respected as producer and adapter of the Spanish versions.” Puig responded: “You can count on the credits on the track.”

In 2009, Vergara took “Wavin' Flag” by hip-hop artist K'naan and wrote Spanish lyrics to be used by Coca-Cola in its World Cup promotions. The song, sung by David Bisbal and K'naan, took off in Spanish-speaking markets, going to Number 1 in several countries. Vergara filed suit, seeking credit for the song. In June 2010, Moore issued a preliminary injunction ordering Coca-Cola to give Vergara credit. But in his latest eight-page ruling, the judge said the e-mails provided more information that allowed him to change his mind about the case.

The attorneys for Coca-Cola had no comment on the case. Vergara's attorneys, James Kaplan and Michael Foster, partners at Miami's Kaplan Zeena, say they will appeal the decision. “There are substantial flaws in the judge's decision,” Kaplan says. “It's very hard to understand how we went from likely to prevail in June to out of court in February based on one cryptic e-mail.”

Moore's decision came with the case three weeks away from trial. Moore said it was a mistake for the plaintiff to rely on the judge's previous decision. “Vergara also relies heavily on this court's prior ruling granting a preliminary injunction. This reliance is misplaced,” the judge wrote.

Now it's too late to give his client credit, Kaplan says. Only money will compensate for being left out of the credit for the big hit, he said.