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The day’s biggest questions answered by the people who actually know WTF they’re talking about.
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Ramón G. Vela Córdova: If he didn't have permission, it's a violation. Whether you want to see it as a right of publicity or as some sort of privacy right, that's a more technical legal point. But however you want to characterize it, you cannot take someone's voice without their consent and put it in your trap song.
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I think she has a stronger position on the right of the publicity claim. I mean, look: All we've seen is her side of the story, obviously. So it's natural that we would think she has a stronger position. But having said that, it just looks bad. You [Bad Bunny] basically stopped using this recording after 2016. The relationship ended, and you stopped using it. And then, suddenly, in 2022, you wanted to use it. You tried to get permission, but you didn't, and you used it anyway. That just doesn't look good. Are there any weak points in de la Cruz Hernández's case?
It sounds like they're saying she is the author, or at least the co-author, of the phrase "Bad Bunny, baby." And so her consent to its use was necessary. Any moral rights claim to the phrase is just a non-starter. In copyright, phrases are not protected. If you had a long phrase, maybe. But short phrases—like "Where's the beef?" or "Bad Bunny, baby"—that's just not copyright subject matter. Now, it's possible that a court in Puerto Rico could say that a phrase is protected under the moral rights law. But it's not a very likely argument. The other main argument is what they described as a self-image claim, which is basically a right of publicity claim. That's when somebody uses your name or your image or your likeness—which includes your voice—for commercial purposes without consent. If [Bad Bunny] didn't have consent, there's absolutely a violation.
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For that song, absolutely. But I don't think those kinds of text messages help him. The way you just phrased it underscores that the agreement was per song. And [in the lawsuit], she's saying: "Yeah, I consented for the songs while we were together, but I didn't consent after that." If the evidence is like that, that's not good for him. I think it would be better for him if it was vaguer.
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What [her lawyers] emphasize in the complaint is that there is a problem of estoppel. The idea of estoppel is, don't contradict yourself. He can't say that he didn't think he needed permission, because he tried to get it. And that would be going against his own actions. It just doesn't look good. If you thought that permission was necessary, then we're going to hold you to that.You have to look at the specific evidence, though. You have to look at what they said and how things were phrased. Maybe [Bad Bunny's team] made some disclaimers or worded things in a way that kind of threads the needle: "Yes, we're asking permission, but this is to avoid litigation. It's not because we think we need it." Then there would be no estoppel argument. So it just depends. But I do think it's a weak point in his case. It's something that he's going to have to explain.It's alleged in the complaint that Bad Bunny's team offered $2,000 for the recording. How does that sum strike you?
For Bad Bunny, I think that was extremely stingy. I mean, this is your former girlfriend, for crying out loud. Pay her whatever it takes. You're a gazillionaire. Honestly, it boggles my mind that they didn't make a serious offer. If, in fact, it was limited to $2,000, I don't get it. It's completely ridiculous. This is going to cost them more—multiples more—just in attorney's fees. I really don't understand why they didn't just offer her $50,000 or $100,000 if they really wanted to use that recording. They have money.
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Let's just think about what value her voice added. You could make the case that, well, it was only used in two songs, and it was only used at the beginning. That's not worth a lot, so we're not going to pay you a lot. But if your fans recognize the line and her voice, and they like it—come on. That's worth more than $2,000. I don't know what it's worth, but it's worth more than $2,000. If you just look at it from a cold economic logic, I think it was stingy. But then if you add to that the fact that it's his former girlfriend, and he has a lot of money, and she had studied law, so you know you're going to get sued, I just don't understand what they were thinking. How do you think Bad Bunny's legal team will respond to this lawsuit?“I mean, this is your former girlfriend, for crying out loud. Pay her whatever it takes.”
I think they're going to settle. I don't think they're going to want to litigate this. That's why I don't understand why they didn't make a better offer. If a lawyer had sat down with this and really given it some thought, they would've said, "Let's resolve this before it becomes an issue." Do you envision them at least trying to file a motion to dismiss, and what do you think the upshot of that would be?
Oh, yeah. They're going to file a motion to dismiss, and it's going to be denied. I'm not saying that they could not get anything dismissed. I think the phrase issue that I mentioned earlier—that could perhaps get any claims about the phrase dismissed. But in general, I don't think they're going to get a dismissal because the right of publicity claim turns fundamentally on this question of what they agreed to. A motion to dismiss is just not the right vehicle to deal with something like that.
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For Puerto Rico, it's huge. Courts here historically have tended to award lower damages. They're claiming $5 million for privacy, $5 million for right of publicity, $5 million in sort of general tort damages—even $5 million is not a low figure in Puerto Rico, and they're asking that for everything. So I think the damages are way out of proportion to what would normally be claimed. They're not going to get that much. I imagine that they're claiming that much because it's Bad Bunny, and why not claim it?
'“They're not going to get that much. I imagine that they're claiming that much because it's Bad Bunny, and why not claim it?”
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I would say in the low six figures; $100,000 or $200,000, something like that. If you value her right of publicity claim at, say, $500,000 or $1 million, and you divide that by half or by a third, that's what I would be looking at. If you were representing her, how much would you ask for in settlement negotiations?
If I were representing her, I would start in the seven figures. I would argue, you know, we have a strong right of publicity claim. And you have money to pay. And if we win, the court is not going to treat you nice. But I would do it with the expectation that I'm not going to get that. What are they going to offer as a counter-offer? $50,000? $100,000? Well, let's start at $1 million, and then we can reach an agreement.How long do you think it might be before this is all over?
I would think that Bad Bunny and company will try for summary judgment. In the motion for summary judgment, you're going, "OK, we've conducted discovery, we have all these documents. Just by looking at the documents and what's alleged in the complaint and what we allege in our answer, there's no liability." A motion for summary judgment is like a trial by documents. I actually won one with this judge once, so I know she doesn't just dismiss them out of hand. I think she'll consider it. But if the issue of what they agreed to turns on credibility, you need them on the witness stand. The judge has to hear them. And you can't do that with documents. You have to have a trial. I think for that reason, even a motion for summary judgment is not going to solve this. If they aren't successful in getting the case dismissed in summary judgment, I think that's where the pressure builds to settle. So I think this could go on for at least a year while they answer and they conduct discovery—nine months to a year at least. And then I think at that point, if they can't get a summary judgment, then I think that they would make a really concerted effort to settle.This interview has been edited and condensed for length and clarity.