Jaime Fernandez, a DJ and promoter, was recently ordered
to pay damages to Pitbull for copyright and moral rights
infringement in respect of the Pitbull song "Bon,
You will recognise the song by its catchy sax sample taken from
the Renato Carosone song "Tu Vuň Fa'
L'Americano", which was also used in the song "We no
speak Americano" by Yolanda be Cool & DCUP.
In 2008 Pitbull provided Mr Fernandez with an "audio
drop" (i.e. words) to help promote an upcoming Australian
tour. The audio drop consisted of Pitbull saying the words:
"Mr 305 and I am putting it right down with DJ
In rap/hip hop speak this is what it means.
"Mr 305" is known among Pitbull's fans to be a
reference to himself.
"DJ Suave" is a reference to Mr Fernandez.
"Putting it right down" implies an association
between the two.
Interestingly, the judge accepted that such associations play an
important role in promoting and building audiences for rap/hip hop
The tour didn't end up going ahead. Later, Mr Fernandez made
a copy of "Bon, Bon" and then made a new mix, inserting
the audio drop. He then streamed this mix from his website and
played it at clubs when he was Djing.
What did Mr Fernandez do wrong?
The Court found that by deleting a prominent part of the song
and then inserting the audio drop Mr Fernandez made it appear that
he was the subject of the song. Also, the fact that the audio drop
was performed by Pitbull created the impression that Pitbull had
authored the new mix himself.
This behaviour constituted a breach of Pitbull's right not
to have his song subjected to derogatory treatment and, because it
created a false association, it was prejudicial to his honour and
reputation as an artist.
Pitbull sought $85,000 in damages but was awarded the sum of
$10,000 in respect of the infringement of his moral rights. This is
despite the Court's finding that Mr Fernandez intended to cause
Pitbull artistic, reputational and commercial harm as an act of
retribution for the grievances he had for the failed tour, while at
the same time leveraging off the infringement for the sake of self
What you need to know about moral rights
Artists are really precious.
Artists have the right to be acknowledged or credited as the
authors of their work. If youve got permission to stream
a Pitbull song from your website, you should clearly identify
Pitbull as the artist.
Artists have a right that their works not be falsely
Dont mess with rappers.
Artists have a right not to have their work or works to be
treated in a derogatory manner. You cant diss their
honour or reputation.
The artist does not have to prove financial damage to have a
Artists have some of the coolest hairstyles in society.
Remedies for infringement are discretionary and include an
injunction and a public apology.
Be very careful about using an artists work in any
promotional material and dont just assume that
your advertising agency is onto it.
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