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, Bon".

You will recognise the song by its catchy sax sample taken from the Renato Carosone song "Tu Vuò Fa' L'Americano", which was also used in the song "We no speak Americano" by Yolanda be Cool & DCUP.

What happened?

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 Suave".

In rap/hip hop speak this is what it means.

  1. "Mr 305" is known among Pitbull's fans to be a reference to himself.
  2. "DJ Suave" is a reference to Mr Fernandez.
  3. "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 music.

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 promotion.

What you need to know about moral rights

  1. Artists are really precious.
  2. Artists have the right to be acknowledged or credited as the authors of their work. If you’ve got permission to stream a Pitbull song from your website, you should clearly identify Pitbull as the artist.
  3. Artists have a right that their works not be falsely attributed.
  4. Don’t mess with rappers.
  5. Artists have a right not to have their work or works to be treated in a derogatory manner. You can’t diss their honour or reputation.
  6. The artist does not have to prove financial damage to have a claim.
  7. Artists have some of the coolest hairstyles in society.
  8. Remedies for infringement are discretionary and include an injunction and a public apology.
  9. Be very careful about using an artist’s work in any promotional material – and don’t just assume that your advertising agency is onto it.

We do not disclaim anything about this article. We're quite proud of it really.