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Miami Beach songwriter Rafael “Rafa” Vergara Hermosilla bested Coca-Cola when a federal judge issued an injunction in their fight over credit for the international mega hit of “Wavin’ Flag” in Spanish.
But litigation is a marathon, not a sprint, and Coca-Cola won the more important Round 2.
U.S. District Judge K. Michael Moore granted Coca-Cola’s renewed motion for summary judgment Feb. 23, dismissing Vergara’s claim of copyright infringement by noting he assigned the rights of his work to Universal Music Group.
As a result, Moore found Vergara had no standing claim to sue Coca-Cola. In a footnote, however, the judge opened the door for a breach of contract suit by the songwriter against the soft drink maker for failing to deliver on a promise to give him 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 e-mail exchanges between Vergara and Jose Puig, vice president of marketing at Universal Latin America, in March 2010.
Vergara wrote 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.”
The artist 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 No. 1 in several countries.
Vergara had already filed suit seeking credit for the song. In June, Moore issued a preliminary injunction ordering Coca-Cola to give Vergara credit. 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, said they will appeal the decision.
“There are substantial flaws in the judge’s decision,” Kaplan said. “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.”
The decision came with the case three weeks away from trial.
Moore said it was a mistake for the plaintiff to rely on his 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 said. Only money will compensate for being left out of the credit for the big hit, he said.
John Pacenti can be reached at (305) 347-6638.

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