Last month a USA court found that a hit song performed and co-written by Shakira was in fact copied from an earlier work.
Shakira had previously collaborated with Dominican rapper El Cata on the song 'Loca'. The song, which sold over 5,000,000 copies worldwide, also featured on her album 'The Sun Comes Out'. Whilst Loca was based on an earlier version of a song written and recorded by El Cata, the court found that the earlier song had in fact been copied from Ramon Arias Vazquez's song called "Loca Con Su Tiguere", which was written in the 1990s, and therefore copyright infringement had taken place.
The rights to Loca Con Su Tiguere are held by Mayimba Music and it was Mayimba which brought the claim against Sony, Shakira's publisher. Sony had distributed the song in both Spanish and English.
Shakira is listed as songwriter of Loca along with El Cata and she is also credited as producer. The respective contributions of the song writers are not known.
As Shakira wasn't a defendant does that mean she is off the hook?
No, Shakira will probably have signed a publishing agreement with Sony and if that agreement is drafted on standard industry terms then it will contain a number of provisions which protect Sony in such situations. For example the agreement is likely to contain an indemnity which Sony is entitled to claim under in the event that a third party brings an intellectual property infringement claim in respect of any of the songs delivered by Shakira to Sony under the agreement. It would be usual to see a broad indemnity provision allowing a publisher to claim under an indemnity for all costs, losses, damages etc that it has incurred due to any such third party intellectual property claim. The agreement is also likely to contain warranties from Shakira that the songs she has provided/will provide to Sony under the agreement are original and do not infringe a third party's intellectual property rights. A warranty is a contractual promise which if breached means that the non-breaching party can claim damages for losses it has incurred due to such breach, from the other party.
What could Shakira have done to protect herself?
When collaborating with others it can be difficult to know if a collaborator's contribution is original. It is important therefore to put a written collaboration agreement in place with any collaborator which gives legal protection in the event of a third party intellectual property claim arising from the collaborator's contribution. It is recommended that the collaboration agreement contains warranties and indemnities from the collaborator. Under a collaboration agreement Shakira (in this case) would have been able to claim under the indemnities for her losses caused by her contributor's copyright infringement, to the extent that they are able to meet their liabilities under such an indemnity.
How we can help
For advice on all copyright issues, drafting of collaboration agreements, publishing agreements and any other music industry agreements please contact Carol Isherwood at [email protected] or 03700 865882.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.