On Tuesday, after conducting a bench trial, a New York federal judge concluded that a subsidiary of Sony Music was liable for copyright infringement for Colombian superstar Shakira's "Loca" from her 2010 album, Sale el Sol.
Arias, who sang his song to U.S. District Judge Alvin Hellerstein during the trial, testified that about eight years ago, he met another singer named Eduardo Edwin Bello Pou, known by the stage name El Cata and in court papers simply as "Bello." Arias said that he had introduced Bello to two of his songs, including "Loca con su Tiguera," which Bello allegedly liked and asked him to record. Bello denied this happened. He said that "Loca con su Tiguera" was his song, inspired by his relationship with his ex-wife, and that after he wrote and recorded it, it made him famous.
Judge Hellerstein, pointing to the existence of a 1998 cassette tape, similarities between the two songs, and the fact that Bello gave the public a different account of the origin of the key phrase of the song, finds Arias' account to be more credible. Here's the judge's complete findings of fact.
Shakira's version of the song featured Bello singing portions. The song was released both in Spanish and English, but the copyright lawsuit mainly focused on the Spanish version. As a result, the judge dismissed the Sony Corporation and Sony Music parent companies from the lawsuit, but not SonyATV Latin and Sony/ATV Discos, which distributed Shakira's Spanish version of "Loca" in the United States.
Judicial declarations of song plagiarism are rare. Although copyright lawsuits are common, the legal test focuses on substantially similar original expression rather than any copying of generic ideas.
Here, Judge Hellerstein finds that the plaintiff has demonstrated "actual copying" — from the evidence of Bello's access — before turning to whether the two works are substantially similar. The judge applies what's known as the "ordinary observer test," where he compares the total concept and overall feel of the two songs.
"However, there is no proof in this case that the phrase 'Loca con su Tiguere' was commonly used in the Dominican Republic or elsewhere at the time Arias composed his song," writes the judge. "'Tiguere' is a slang word in the Dominican Republic [for street tough]. But the fact that that one word in a phrase is slang does not mean that the phrase itself is necessarily so common that it cannot be copyrighted. Popular musicians have been using slang and metaphors in their songs for decades."
The judge also says both songs have a similar structure and both are driven by hooks framing one long verse. "These hooks play a similar function in both songs," states the judge's findings. "Similar rhythm in both hooks drive the songs. The repetitions are slightly different, but the differences do not affect the song."
Having concluded all his, he then turns his attention to Shakira's song.
"There is no dispute that Shakira's version of the song was based on Bello's version," writes the judge. "Accordingly, I find that, since Bello had copied Arias, whoever wrote Shakira's version of the song also indirectly copied Arias."
The case now moves to a trial phase to determine damages to be paid.