vergara v coca-cola opinion

8/9/2019 Vergara v Coca-Cola Opinion

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IN THE UNITED STATES DISTRICT COUR TFOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 10-2 1418-CIV-MOOREISIMONTONRAFAEL "RAFA" VERGA RAHERMOSILLA,

Plaintiff,

THE COCA-COLA COMPANY,Defendant.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR PRELIMINARYINJUNCTION

THIS CAU SE came before the Court upon P lai nti ffs Em ergency Motion for PreliminaryInjunction (dkt # 10).

UPON CON SIDER ATION of the Motion, the Response, the Reply, and the pertinentportions of the record, and be ing otherwise fully advised in the prem ises, the C ourt enters thefollowing O rderI. BACKGROUND

This case involves a claim by Plaintiff Rafael "Rafa" Verga ra Herm osilla ("Vergara") toobtain damages and equitable relief for copyright infringement by Defendant Coca-ColaCom pany ("Coca-Cola"). Verga ra's cu rrent Mo tion seeks a preliminary injunction preventingCoca-Cola from using the song "W avin' Flap (Coca-Cola Spanish Celebration Mix)."

A. Factual BackgroundVergara is a songw riter, producer, and vocalist who has written songs for m any

successful artists including M arc A nthony and Jaci Velasquez. See Dec laration of Rafael "Rafa"

Case 1:10-cv-21418-KMM Document 31 Entered on FLSD Docket 06/02/2010 Page 1 of 16


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Vergara Hermo silla (dkt # 10-1) ("Vergara Decl."), at T[ 2-3. In Novem ber 2009, Coca-Co larequested that Universal Mu sic Group and several of its divisions or subsidiaries (collectively"Universal") assist it in creating a version of a music single that wou ld incorporate Spanishlanguage lyrics and be used to promote Coca-Co la's brands during the 2 01 0 FIFA W orld CupSoccer Games. See Declaration of Jose Puig (dkt # 16-2) ("Puig Decl."), at T[7 2-3. The gamesare scheduled to take place in June 20 10. d.The single to be altered was W avin' Flag (Coca-Cola Celebration Mix) by the artist K'naan. Id. 3. Coca-Cola secured "all the necessaryrights" to create revised versions of this song from all those w ho ow ned cop yright interests in theoriginal composition. Id. Performer David B isbal ("Bisbal") was selected to sing the Spanishlanguage portion of the new version wh ile K'naan would still sing the English language portion.Id. Vergara was selected to perform two tasks: (I ) to translate a portion of K'na an's lyrics intoSpanish and (2) to mix and produce Bisbal's vocals for the final mix. Id. [ 5.

On Novemb er 1 7,2 00 9, Jose Puig ("Puig"), then a Vice President of Marketing forUniversal Music Latin America, contacted Vergara by telephone and Vergara agreed bytelephone to adapt the lyrics to Spanish and to m ix and prod uce the record. Id. 6. Accordingto Puig, during this conversation the two agreed that Vergara's work w ould be a wo rk-for-hireand that Vergara's fe e would be $6 ,000 for the project. Id. By contrast, Vergara den ies that theParties intended this to be a work-for-hire or that he h as ever w ritten a w ork-for-hire in hiscareer. Vergara Decl. I T [ 6-8.

On Novem ber 18, 2009 at 3:04 a.m., Vergara sent an email to Puig containing Spanishlanguage lyrics as w ell as an audio file demonstrating how the lyrics were to be sung . See Emailfrom Vergara to Puig (Nov. 18 ,20 09 ) (English translation) (dkt # 22-3). Puig responded later



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that day noting "this is incredible. Now we can call this a song!" See Email from Puig toVergara (Nov. 18,2009) (English translation) (dkt # 22-3). Over the following weeks, Vergaracreated a variety of versions of the song u sing his ow n vocals, and ultimately one of the versionswas approved by Universal, Coca-Co la and K'naan. Puig Decl. 7 1 1. On D ecember 2,20 09, asplanned, Bisbal recorded vocals for the track based on V ergara's lyrics and demo vocals. Id.The resulting track was returned to Vergara, who then performed add itional mixing, backgroundvocals, and production on the track. Id. On December 4,2 00 9, Vergara delivered a masterversion to Puig and this version has now appeared in a numb er of promotions in Spanish marketsand in the United States, including a video which features both K 'naan and Bisbal. Id. 7 11-13.The first publication of the work w as in Mexico via iTunes' Mex ican download w ebsite andCoca-Co la's Mexican website. Vergara Decl. 7 18 .

On D ecember 6,2 00 9, Vergara submitted an invoice for $10,000.00 to Universal for hiswork on the project including "Production, vocal edition, background vo cals, mixing andmastering." See Invoice No. 03 1-2009 (dkt # 22-4). Before paying the monies due under theinvoice, Universal asked that Vergara sign a docum ent stating that all work don e was w ork-for-hire. Puig Decl. 7 16 .

On M arch 4,2 01 0, Vergara wrote an email to Puig seek ing to resolve the dispute whichstated:

When you proposed to me the adaptation of the song Wavin Flag, the opportunityto solicit a percentage for the adaptation was always left open to the originalauthors.If I would have known from the beginning that such a possibility did not exist, Iwould have never agreed to do the adaptation. Additionally, I want to make itclear that the adaptation has nothing to do with the work I later performed asproducer.



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As such, over the past weeks we have tried to communicate with the originalauthors, but no one has wanted to recognize our adaptation and the only versionresulting from it.It is a shame that the original authors (as creative people) do not recognize mycontributions to the official version of Waving Flag Spanish Celebration, asidefiom unjust, it is illegal. It must be that this is the first time that they dosomething important, because this has never happened to us on any otheradaptation.But because I am a man of my word and honor, that is not moved by economicmotives, my only request is that my credits are respected as producer and adapterof the Spanish version (that every time the name of any comp.oser of this versionappears, my name appears as adapter), and obviously, the credits for theproduction that are detailed in the invoice sent for this production, which I havedetailed below.For the adaptation, you may consider it a work for hire with no economiccompen sation to that respect. I believe what's legal is a dollar.I hope that this leaves clear what my work was and what my go od intentions werefrom the beginning .

Puig Decl. T[ 18 (English translation); see also Em ail from Vergara to Puig (Mar. 4,2 01 0) (dkt# 27-3) (English translation).

On March 8 ,20 10 , Vergara sent another email to Puig stating,I appreciate your sending me the contracts. How ever, my proposal was clear andit was just that, a proposal, since you requested my help because you knew thingshad not been done right. My only request regarding said proposal was a series ofthings that are not included in what you sent me. Moreover, nothing of what Iproposed to you is included in the contracts.I want you to know I'm very upset and rather dissapointed [sic], because myproposal was based more on our friendship than anything else, and what I gotdoes not honor the agreements.Taking into account the above, I hereby inform you that the proposal of lastFriday from which the contracts would supposedly derive is revoked as of nowand without effect.



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See Email from Vergara to Puig (Mar. 8, 2010) (English translation) (dkt # 22-6). Puigresponded to this stating, "I did not review the contracts. I will review them with the attorneyright away and make any necessary changes. I'm sorry." See Email from Puig to Vergara (Mar.8,2 01 0) (English translation) (dkt # 22-6). Shortly thereafter, this lawsuit was brought.

B. Procedural BackgroundOn May 3 , 2010, Vergara initiated this action by filing a Com plaint (dkt. # 1). On May

11 , 2 010, Vergara filed the instant Emergen cy Motion for Preliminary Injunction (dkt # 10).This injunction seeks an Order requiring that Coca-Co la and its subsidiaries cease advertisingwith, selling, distributing or otherw ise comm ercially exploiting the song con taining Vergara'slyrics. Id. t 13 . Additionally, Vergara requests that the Order require Coca-Cola toimm ediately provide a public acknow ledgment of Vergara's contribution "by such media orother vectors as the W ork has been p reviously disseminated." Id. Vergara also seeks fees andcosts. Id. On May 13,2010, Vergara filed a Motion R equesting a Hearing (dkt # 13) in relationto the request for an injunction. On May 1 7, 20 10, Coca-Cola filed a Response (dkt # 16). OnMay 19 ,201 0, Vergara filed a Reply (dkt # 20).'11. INJUN CTIV E REL IEF

To obtain a preliminary injunction, a party must establish four elements: (1) a substantiallikelihood that it will prevail on the m erits; (2) a substantial threat that it will suffer irreparableinjury if the injunction is not granted; (3) the threatened injury to plaintiff o utweighs the

' On May 2 1,2 010, Vergara and Coca-Cola filed English translations (dkt ## 22 ,27 ) of certainsupporting docum ents in response to this Cou rt's Order (dkt # 21) stating that Spanish languagedocuments without English translations would not be considered. On M ay 2 8,2 01 0, Vergarafile a Notice containing a citation to a newly issued Ninth Circuit decision wh ich he be lieves tobe relevant (dkt # 30).



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threatened harm the injunction may do to the defendants; and (4 ) granting the preliminaryinjunction will not disserve the public interest. See Church v. Citv of Huntsville, 30 F.3d 1332,1342 (1 lt h Cir. 1994); see also N. Am. C o p . v. Axiom W orldwide. Inc., 522 F.3d 1211, 1217(1 1 h C ir. 2008). Because a "preliminary injunction is an extraordinary and drastic remedy," itis "not to be granted until the m ovant clearly carries the burden of persuasion as to the fourprerequisites." Church, 30 F.3d at 1342 (quoting Ne. Fla. Chapter of the Ass'n of Gen.Contractors o f Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (1 1 h C ir. 1990)).

A. Likelihood of Success on the Merits

In addressing whether there is a substantial likelihood that Ve rgara will succeed on themerits, the Court first discusses Vergara's prima facie case for infringement. Next, the Cou rtaddresses Coca-Cola's argumen ts that it is not liable because it: (a) has an implied, non-exclusive license to use the w ork; (b) Vergara performed the w ork as wo rk-for-hire; (c) the workwas never registered with the United States C opyright Office; and (d) Coca-Co la had joint rightsin the work.

1. Prima Facie CaseA plaintiff seeking an injunction based on infringement m ust first establish that he has

met the prima facie elemen ts of a copyright infringement claim. Vergara must therefore show:(1) that he own s a valid copyright in the work and (2) that Coca-Cola cop ied original elements ofthe work. See Suntrust Bank v. Houghton M ifflin Co., 268 F.3d 1257, 1265-66 (1 lt h Cir. 2001).Here, Vergara claims to have an enforceable Mexican co pyright. To supp ort this claim, Vergarahas subm itted a Declaration by an intellectual property attorney who is licensed to practice in



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Mexico. See Declaration of JosC Reygadas, Esq. (dkt # 10-2) ("Reygadas D ecl."), at 77 2-3 *According to Reygadas,

Under Mexican copyright law, copyright protection immediately attaches whenan original work is created by a composer and incorporated into a tangiblemedium, e.g. MP3 or CD, by means of which the original work can then bepublished. The composer of the work may thereafte r enforce the copyright bymeans o f a civil or criminal action.Mexican Copyright law does not require registration of the original work prior toan author instituting an action to enforce his or her copyright protection.Copyright registration under Mexican law is simply a public declaration ofownership.

Id. '714-5. Thus, Vergara's Mex ican copyright in the translated lyrics3became enforceable inMex ico once they were transmitted to Universal by em ail. Id.1 . Vergara's Mexican copyrightthen becam e enforceable in the United States no later than when his lyrics were published inMex ico. Under Section 104(b)(2) of the Copyright Act, works first published in foreigncountries are protected in the U nited States if the foreign cou ntry, "on the date of firstpublication, is a treaty party." 17 U.S.C. 5 104(b). Mex ico is a "treaty party" to numerous

Copy right treaties with the United States, including the Un iversal Cop yright Conven tion and the

When an alyzing foreign law, district courts may rely on affidavits of foreign attorneys. SeeTrinidad Foundry and Fabricating. Ltd. v. M/V K .A.S. Camilla, 966 F.2d 6 13, 615 (1 lt h Cir.1992); Whallon v. Lynn, 230 F.3d 45 0,4 58 (1st Cir. 2000) (relying on affidavit of Mexicanattorney); see also Fed. R. Civ. P. 44.1. Coca-C ola has provided no contrary evidence regardingMex ican law, and thus the description of Mexican law in Reygadas' Declaration is taken asaccurate.Thoug h Vergara claims a n original copyright in more than just the translation of the lyrics, theCourt focuses on this translation b ecause it is less clear whether Vergara's role in other elementsof the work was exclusive given Bisbal's contribution of vocals, and Universal and Coca-C ola'salleged input at the mixing stage. Puig Decl. 1 1. How ever, the Cou rt need not address thescope of Vergara's copyright beyond rights in the translation at this point, because findingVergara has a copyright in the translated lyrics is sufficient to decide this Motion.



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Berne Convention. See Melville B. Nimmer and David Nirnmer, Nimmer on Copyright, App'x24-27 (20 10) (reprinting Universal Copyright Con vention and the B erne Con vention).Moreo ver, Vergara's lyrics qualify for protection under Section 1 04(b)(2) because they werepublished in Mexico before publication in the United S tates. See Vergara Decl. 7 18.4 Finally, itis undisputed that Coca-C ola subsequently copied original elements of Vergara's lyrics andpublished them in the United States. See id. Thus, Vergara has shown he can establish a primafacie claim for infringement.

2. Implied, Non-E xclusive License

Coca-C ola argues that Vergara's requ est for injunctive relief must be den ied becauseCoca-C ola has an implied, non-exclusive license to use the work. Resp. at 7-10.

A nonexclusive license to use copyrighted material may be granted orally orimplied from conduct. Because there is no transfer of ownership, as with anexclusive license, a nonexclusive license need not be in writing. An impliednonexclusive license is created when one party creates a work at another party'srequest and hands it over, intending that the other party copy and distribute it. Indetermining whether an implied license exists, a court should look at objectivefactors evincing the party's intent, including deposition testimony and whetherthe copyrighted material was delivered "without warning that its further usewould constitute copyright infringement." A copyright owner waives his right tosue for copyright infringement wh ile the nonexclusive license is in effect.

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 9 49 ,95 6 (1 lt h C ir. 2009) (citations omitted).How ever, such a license is revocable unless and until consideration is accepted by the licensor.

For purposes of this analysis, it is irrelevant that this publication w as made by Coc a-Colaitself. Publication need not be don e by the copyright holder, but may rather be done by anotherparty so long as that other party has the copyright holde r's consent. 1 Nimm er on C opyright5 4.04 (collecting cases). As d iscussed in S ection III(A)(2) and Section III(A)(4) infra, theoriginal publication in Mexico of Vergara's work was do ne by Coca-Co la with Vergara'sconsent pursuant to an implied non-exclusive license. That this consent was later revoked doesnot undo the prior publication.



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Carson v. Dv ne ~v .nc., 344 F.3d 44 6, 45 1 (5th Cir. 2003) (stating that a license not sup portedby consideration is revocable and revoked by filing a lawsuit). In the present action, Vergara hasmade clear that he has, to date, accepted no consideration for his work. 2d Vergara Decl. 7 18(dkt # 20-1). Thus, while an implied, non-exclusive license undoub tedly existed when the workwas initially published, this license was unequivocally revoked the mom ent the present lawsuitwas filed. Thus, Coca-Cola's defense on this basis is m e r it le ~ s .~

Coca-C ola next argues that Vergara's Mo tion must fail because Vergara performed thework as work-for-hire. Resp. at 7-10. "Once it is established that a work is made for hire, thehiring party is presumed to be the author o f the work." Plavboy Enters., Inc. v. Dum as, 53 F.3d54 9,55 4 (2d Cir. 1995). Since Vergara is not an employee of Coca-Cola or Universal, for thesubject piece to be considered wo rk-for-hire, the parties must expressly agree "in a writteninstrument signed by them that the work shall be considered a work made for hire." 17 U.S.C.5 101.

Coca-Cola has made no showing that any such agreement exists. The document thatCoca-C ola relies on is an em ail that is an offer to deem the song a work-for-hire in exchang e forUniversal and Coca-Cola agreeing to other conditions. Puig Decl. 7 18 (Vergara asked that "mycredits are respected as producer and adap ter of the Spanish version (that every time the name ofany composer of this version appears, my name appears as adapter")). That this email was an

The main case relied on by Co ca-Cola, Jacob M axwell, Inc. v. Veeck, 110 F.3d 74 9 (1 1 Cir.1997), is readily distinguishable in that in Jacob Max well the licensor w as seek ing to claiminfringement for usage that occurred before the licensor successfu lly revoked the impliedlicense. See id. at 753. By contrast, in the present action, the alleged infringement is ongoing.



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offer and not an agreem ent is shown by the fact that shortly thereafter, Un iversal sent Vergaracontracts constituting a counteroffer that did not contain Vergara's requested terms. See Emailfrom Vergara to Puig (Mar. 8,2 01 0) (English translation) (dkt # 22-6). Vergara then expresslyrevoked the prior offer, i and so Coca-Cola may not rely on Vergara's March 4,2 01 0 email toshow the translation was a work-for-hire. Thus, the translation of so ng lyrics by Vergara do notqualify as a work-for-hire because the w riting requirement for work-for-hire con tracts is notmet.6

4. RegistrationCoca-Cola next argues that the request for injunctive relief must be denied because

Vergara has only applied for copyright registration, and registration has not y et been granted.Resp. at 13-17. Howev er, as noted above, Registration is not a requirement under M exican law,Reygadas Decl. 77 4-5, and foreign copyright holders do not need to register in the United S tatesunless they seek statutory damages or attorneys' fees. Rudnicki v. WPN A 1490 AM , 580 F.Supp. 2d 690, 694 (N.D. Ill. 2008) ("Registration is only a prerequisite when the foreigncopyright holder seeks statutory damages and attorney's fees."). Coca-Cola argues that the onlypublication in Mexico was done by Coca-Co la, and Coc a-Cola's own behavior was unauthorizedby Vergara, and thus did not qualify as publication for Section 104 (b)(2) purposes. Resp. at 14 .Thus, Coca-Co la reasons, because the translation was never validly published in M exico thework must be registered in the United States before a lawsuit may validly be brought. This

The fact that the Parties disagree as to whether Vergara's work w as intended to be a work-for-hire is irrelevant. See Puig Decl. 7 6; Vergara Decl. 77 6-8. Wh ether or not the Parties intendedthe work as a work-for-hire, they did not fulfill the statutory requirements to create a validagreement.



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argume nt without merit. As noted above, Coca-C ola's initial publication in Mexico wasprotected by an imp lied, non-exclusive license. Thus, the initial publication of the translation inMex ico was authorized by Verg ara and satisfied the foreign publication requirement u nderSection 104 (b)(2), and the requirement of R egistration in the U nited States was n ever triggered.Therefore, Coca-C ola cannot defeat Vergara's Motion on this basis.

5. Joint RightsCoca-C ola argues that Vergara's request for injunctive relief mu st be denied because

Vergara was, at most, a joint author of the work. Resp. at 18-19. Vergara has stated that neitherCoca-C ola nor Universal provided him w ith any assistance in creating the Sp anish languagetranslation of the song. Vergara Decl. 7 14. Coca-Cola has presented no evidence showingotherwise. Thus, Vergara's contribution is more accurately categorized as an authorizedderivative work, rather than as a joint work. See 17 U.S.C. 101 ("A 'derivative work' i s awork based upon on e or more preexisting works, such as a translation . . .").

The subject matter of federal copyright includes derivative works, but thecopyright in such works 'extends only to the material contributed by the author,'and does not affect any copyright protection in the preexisting m aterial. Under 17U.S.C. 5 101, 'a derivative work must incorporate a substantial element of apreexisting work of authorship and recast, transform, or adapt those elements.

Latimer v. Roarinn Tovz, Inc., 601 F.3d 1224, 123 3-34 (1 1 h Cir. 2010). A copyright holder cantypically obtain a copyright in a derivative work wh en the derivative work was created lawfully.Id. at 1234 ; Palladium M usic, Inc. v. EatSleepM usic, Inc., 398 F.3d 1193, 11 97 (10th C ir. 2005)

(noting work can be copyrighted as a derivative work "if the new work was produced w ith thepermission of the copyright owner of the preexisting work"); see also 1 Nirnrner on Copyright5 3.06 (collecting cases). In the present action, it is undisputed that C oca-Cola had secured "all



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necessary rights" from K 'naan and others to create revised versions of K'na an's originalcomposition. Puig Decl. 7 3. Vergara's derivative translation was then authorized and indeedsolicited by Coc a-Cola through Universal and thus was created lawfblly. Moreo ver, "the right toclaim copyright in a noninfringing derivative work arises by operation o f law, not throughauthority from the copyright owner of the underlying work." 1 Nirnrner on Copyright 5 3.06."Even thoug h one co-author has the right to revise a joint work in order to create an individualderivative work, the other co-author acquires no property rights in the newly created wo rkprepared without his involvem ent." Weissm ann v. Freeman, 868 F.2d 1313, 1318 (2d Cir.1989). Here, Vergara's new ly created derivative translation w as done without the originalauthor's involvem ent, but with the original autho r's permission. Thu s, Vergara has exclusivecopyright ownership of h is translation.

6. ConclusionFor all the abov e-stated reasons, the C ourt finds there is a su bstantial likelihood that

Vergara has a valid copyright that has been infringed, and that h e will prevail in this litigation.B. Threat of Irreparable HarmVergara must next show that he will be irreparably harmed unless this C ourt issues an

injunction. "An injury is 'irreparable' only if it cannot be undone through m onetary remedies."Ferrero v. Assoc. Materials Inc., 923 F.2d 1441, 1449 (1 1 h Cir. 19 91) (citation omitted). "[Tlheloss of customers and goodw ill is an 'irreparable' injury." Id. citation omitted). The harm to

Vergara by C oca-Cola using his lyrics without providing credit goes beyond m onetary damag esto his name recognition among mu sic listeners. He has put forward undisputed evidence that hisearning ability is largely dependent o n "receiving cred it for writing songs, which en hances my



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reputation and exposure." Vergara Decl. 7 4; cf.Smith v. Montoro, 648 F.2d 602 , 607 (9th Cir.198 1) ("[slince actors' fees for pictures, and inde ed, their ability to get any w ork at all, is oftenbased on the drawing power their name may be expected to have," being cred ited is "of criticalimportance in enabling actors to sell their 'services"'). Moreover, since the lyrics are designedfor a song relating to the World Cup, as soon as the World Cup ends it will be difficult, if notimpossible, to recapture the goodw ill and exposure lost during the World Cup period. Thus,Vergara has shown that he is in danger of being irreparably harmed.

C. Balancing of HardshipsThe Court must next address whether the threatened injury to Vergara if a preliminary

injunction is denied outweighs any potential harm to Coca-Cola if the preliminary injunction isgranted. See Axiom Worldwide, 522 F.3d at 1217. Coca-Cola claims that a complete bar fromusing the song in the United States7 would cost Coca-C ola over $15,050 ,000 dollars.Declaration of Miguel Nigrinis (dkt # 16-3), at 7 18. Given the sheer amount of money at stake,this potential harm to Coca-Co la outweighs Vergara's interest in ordering an ou tright injunction.How ever, Coca-Cola has not come forward with any evidence whatsoever showing that it will beharmed by having to credit Vergara as the adaptor whenever the author of the o riginal lyrics arecredited and the adaptation is used. Indeed, Coca-Co la claims that it is already doing so. SeePuig Decl. T[ 19. Thus, Coca-Co la will suffer minimal harm and V ergara's rights will beprotected if the injunction is structured such that Coca-Cola is only enjoined from selling or

This Court could not issue an injunction for infringemen t occurring outside the United States.Palmer v. Braun, 376 F.3d 1254, 1258 (11h C ir. 2004) ("federal copyright law has noextraterritorial effect, and cannot be invoked to secure relief for acts of infringemen t occurringoutside the United States") (citations om itted).



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otherwise using Vergara's lyrics without providing Vergara credit when ever his lyrics are usedand either (1) the original English com poser is credited or (2) a compo ser is often credited withsuch a use.8 Similarly, Vergara's request that Coca-Cola provide a public acknow ledgment ofVergara's contribution "by such media or other vectors as the W ork has been previouslydisseminated" is unduly burdensome. Howev er, Coca-Cola can notify consum ers on its ownwebsite on the download page offering "Wavin' Flag (Coca-Cola Spanish Celebration Mix)" atminimal cost to itself. Thus, an injunction can be entered in a manner su ch that the benefits toVergara outweigh the potential harms to Coca-Cola.

D. Public InterestFinally, Vergara must sh ow that the public interest would not be disserved by the

requested injunction. See Axiom Worldwide., 522 F.3d at 1217. Copyright law's "ultimate aimis . . . o stimulate artistic creativity." Twentieth Century Music C o y . v. Aiken, 422 U.S. 151 ,156 (1975). Here, this goal will be served by granting a partial injunction because artists whoprovide valuable services such as translation of lyrics will know their work will be protected.

E. ConclusionFor the above-stated reasons, this Co urt finds after considering Vergara's likelihood of

success, the potential for irreparable harm, C oca-C ola's counterbalancing interests and the publicinterest, that an injunction should issue. Howev er, this Cou rt also finds that the injunction

For example, Coca-Co la need not credit Vergara in television advertisements unless C oca-Colatypically credits a composer in a com mercial or unless the composer of the English lyrics iscredited as such, while Coca-Co la would need to credit Vergara when "W avin' Flag (Coca-ColaSpanish Celebration Mix)" is distributed in a medium such as iTunes where com posers are oftencredited.



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requested would be unduly burdensome, and thus has sought to craft a more narrow injunctionthat protects Vergara from irreparable harm w ithout unduly burdening Coca-Cola.111. ATTO RNEY S' FEES AND COST S

Although Vergara's Mo tion seeks attorneys' fees and costs, Mo t. at 13 , nothing inVergara's Motion suggests he is entitled to attorneys' fees or costs. Thu s, this portion of theMotion is denied.IV. CONCLUSION

For the foregoing reasons, Plaintiffs Emergency Motion for Preliminary Injunction (dkt# 10) is GRAN TED IN PART. It is

ORDE RED AND ADJUDGE D that, by June 11 , 2 010, Defendant Coca-Cola and anyindividuals or entities acting under its direction or con trol cease advertising, selling, distributing,or otherwise disseminating "Wavin' Flag (Coca-Cola Spanish Celebration Mix)" unlessadaptation credit is given to Vergara when ever his lyrics are used and either: (1) the originalEnglish composer is credited or (2) a composer is often credited with such a use. It is further

ORDER ED AND ADJUDGE D that, by June 11 , 2 010, Defendant Coca-Cola post on itswebsite on the page offering "Wavin' Flag; (Coca-Cola Spanish Celebration Mix)" for download,a conspicuous notice indicating Vergara's contribution to the song. It is further

ORDERED AND ADJUDGED that, by June 1 2, 20 10, Defendan t Coca-C ola file withthe Court a Notice, stating that Coca-Cola has complied with the abov e requirements.



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Plain tiffs M otion for Hearing (dkt # 13) is DENIED AS M OOT.DONE AND ORDERED in Chamb ers at Miami, Florida, this &day of June, 2010.

Id.MICHAEL MOOREUNITED STATES DISTRICT JUDGEcc: All counsel of record


vergara v coca-cola opinion

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