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Hermosilla v Coca-Cola Atty's Fees

Hermosilla v Coca-Cola Atty's Fees

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Published by: propertyintangible on Nov 13, 2011
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA 
Case No. 10-21418-CIV-MOORE/TORRESRAFAEL “RAFA” VERGARA HERMOSILLA,Plaintiff,v.THE COCA-COLA COMPANY,Defendant. ________________________________________/
REPORT AND RECOMMENDATION ON DEFENDANT’S VERIFIED MOTION FOR ATTORNEY’S FEES AND FULL COSTS
This matter is before the Court on Defendant The Coca-Cola Company’s(“Coca-Cola”) Verified Motion for Attorney’s Fees and Full Costs (“Defendant’sMotion”) [D.E. 188] filed May 5, 2011; Plaintiff Rafael “Rafa” Vergara Hermosilla’s(“Vergara”) Response in Opposition (“Plaintiff’s Response”) thereto [D.E. 190] filedMay 23, 2011; and Defendant’s Reply [D.E. 193] filed June 9, 2011. The Court hasreviewed the motion, the response, the reply, related authorities submitted by theparties, and the record in this case. For the following reasons, the Verified Motionfor Attorney’s Fees and Full Costs should be granted in part and denied in part.
!ase 1:10-cv-21418-KMM Document 194 Entered on FLSD Docket 07/15/2011 Page 1 of 43
 
The facts in this section are taken from the District Court’s Order granting
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summary judgment to Defendants in this case [D.E. 170] (all internal citationsomitted).
 I. BACKGROUND
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In 2009, Vergara was hired by Coca-Cola to adapt the song “Wavin’ Flag” byperformer K’naan to include a verse of Spanish language lyrics in Coca-Cola’sworldwide 2010 World Cup marketing campaign. These lyrics were to be sung byDavid Bisbal (“Bisbal”), a Spanish language performer. Vergara’s dealings wereprimarily with Jose Puig (“Puig”), the Vice-President of Marketing at UniversalMusic Latin America, who was working with Coca-Cola for the campaign. Aroundthis time, Vergara, Puig, and others discussed the possibility of Vergara receivingan adaptor’s share of the profits derived from the adaptation.On November 17, 2009, Vergara adapted the lyrics to Spanish. While insome places the adaptation was a literal translation, in other places Vergara alteredthe words significantly while attempting to respect the concept, rhythm, andmelody of the existing song. Over the following months, a version of “Wavin’ Flag”was produced using both the Spanish language lyrics and some of the originalEnglish lyrics. A video promoting Coca-Cola was also made using the new versionof the song.On February 26, 2010, Vergara’s request for an adaptor’s share was denied. At that time, Vergara threatened to file a lawsuit to enforce his copyright of thelyrics. On March 4, 2010, Vergara told Coca-Cola that it could not use the adaptedlyrics in his song unless he received an adaptor’s share. That day, Puig and Vergara spoke on the phone regarding this dispute. During this conversation Puig
!ase 1:10-cv-21418-KMM Document 194 Entered on FLSD Docket 07/15/2011 Page 2 of 43
 
asked Vergara to agree to relinquish any copyright interest in the work. Later thatday, Vergara wrote an email to Puig seeking to resolve the dispute which stated inpart:[B]ecause I am a man of my word and honor, that is not moved byeconomic motives, my only request is that my credits are respected asproducer and adapter of the Spanish version (that every time the nameof any composer of this version appears, my name appears as adapter),and obviously the credits for the production that are detailed in theinvoice sent for this production, which I have detailed below.For the adaptation, you may consider it a work for hire with noeconomic compensation to that respect. I believe what’s legal is adollar.I hope that this leaves clear what my work was and what my goodintentions were from the beginning.Puig responded to this email the next day with an email stating, “Rafa, weare aware of your goodwill from the beginning, and most of all, we are aware of howhard you had to work given the little time we gave you. You can count on thecredits on the track. I am resending you the contract.” Also that day, Puig sentdraft agreements to Vergara that did not contain a provision for Vergara receivingcredit.On March 8, 2010, Vergara sent another email to Puig, stating,I appreciate your sending me the contracts. However, my proposal wasclear and it was just that, a proposal, since you requested my helpbecause you knew things had not been done right. My only requestregarding said proposal was a series of things that are not included inwhat you send me. Moreover, nothing of what I proposed to you isincluded in the contracts.I want you to know I’m very upset and rather disappointed, becausemy proposal was based more on our friendship than anything else, andwhat I got does not honor the agreements.
!ase 1:10-cv-21418-KMM Document 194 Entered on FLSD Docket 07/15/2011 Page 3 of 43

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