Hermosilla v. The Coca-Cola Company , 446 F. App'x 201 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11317 NOVEMBER 3, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:10-cv-21418-KMM
RAFAEL VERGARA HERMOSILLA,
Plaintiff - Appellant,
versus
THE COCA-COLA COMPANY,
a Delaware corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 3, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Rafael Vergara Hermosilla appeals the summary judgment in favor of the
Coca-Cola Company and against his complaint of copyright infringement.
Vergara argued that Coca-Cola infringed on his copyright interest in his Spanish
adaptation of a song that Coca-Cola used in its advertising. The district court
ruled that Vergara had assigned his copyright interest in the adaptation to
Universal Music Latin America, which in turn had assigned its rights to the
adaptation to Coca-Cola. We affirm.
As part of its advertising campaign for the 2010 FIFA World Cup soccer
tournament, Coca-Cola enlisted recording artist K’naan to create a new version of
his song “Wavin’ Flag.” Coca-Cola had the new version, the “Celebration Mix,”
sung in different languages by local artists and K’naan. To create the Celebration
Mix, Coca-Cola obtained rights from the owners of both the sound recording and
the musical composition of “Wavin’ Flag.” “The sound recording is the
aggregation of sounds captured in the recording while the song or tangible
medium of expression embodied in the recording is the musical composition.”
Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1289 n.18 (11th Cir. 2011).
Coca-Cola contacted Jose Puig of Universal Music Latin America to
produce a Spanish version of the Celebration Mix. Puig sought advice from
Rafael Artero of Universal Music Publishing Group to select a songwriter. Artero
recommended that Puig employ Vergara, who had a contract with Universal
Group.
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In November 2009, Puig and Artero called Vergara, who agreed to adapt the
song. According to Vergara, Artero said he would “carry out the normal
procedure as he would in any song in order to claim [Vergara’s] rights and register
the work.” Vergara knew that he would have to negotiate to obtain an interest in
the adaptation, but Vergara had “written hundreds of songs” and adapted one
song, and “no publishing house or author [had] ever denied [him] that right.” In
the past, “whenever Vergara [had] requested . . . rights there [had] always been a
dialogue with the other party and an agreement . . . reached without any problem.”
In one evening, Vergara adapted the Celebration Mix into Spanish. Vergara
sent to Puig the lyrics and a “demo” musical recording that combined the lyrics
with the Celebration Mix. Coca-Cola approved Vergara’s adaptation, and Vergara
produced the recording of the Spanish Celebration Mix. Vergara delivered his
finished product to Puig in December 2009.
Vergara sent the Universal Group an invoice for $6,000 for his production
work, and in January 2010, Universal Group began negotiating with the owners of
the musical composition to obtain an “adapter’s share” of the profits for Vergara.
In February 2010, iTunes Mexico began selling the Spanish Celebration Mix, but
iTunes did not credit Vergara for the Spanish lyrics and adaptation. When the
owners of the musical composition refused to give an adapter’s share to Vergara,
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he threatened to file a lawsuit to enforce his copyright interest in the adaptation.
Puig and Vergara negotiated a settlement. On March 4, 2010, Vergara
emailed Puig and Artero “to repeat and reaffirm the terms [that Vergara and Puig
had] discussed.” Vergara stated that “a door [had] always [been] left open for
requesting from the original authors a percentage for the adaptation” and had he
known “that such a possibility did not exist,” he “would have never considered
making said adaptation.” Vergara stated that his “only demand” was that his
“name as an adapter . . . [was listed] every time the name of any composer of [the
Spanish Celebration Mix] [was] shown, . . . along with . . . production credits.”
Vergara told Puig to “consider [the adaptation] a Work for Hire with no economic
compensation” other than “one dollar.” On March 5, 2010, Puig emailed Vergara
that he could “count on the credits on the track” and that Puig was “resending
[Vergara] the contract.”
On March 4, 2010, Universal Group assigned its copyright interests in the
adaptation to Coca-Cola. In the contract, Universal stated that it had acquired the
copyright from Vergara. The second clause of the contract provided that
“Universal . . . assign[ed] and transfer[red] [to Coca-Cola] title to the musical
work in Spanish of Wavin’ Flag, produced [by] Mr. Rafael Vergara, who in turn
assigned the copyrights to such musical arrangement to Universal.”
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Puig mailed Vergara contracts that did not comply with Vergara’s requests
for credit for his work. On March 8, 2010, Vergara sent to Puig an email stating
that Vergara was “revok[ing]” his “proposal” of March 4, 2010. Vergara stated
that his “proposal was clear and it was just that, a proposal.” That same day, Puig
responded that he had failed to “review the contracts” and he would do so “right
away and make any necessary changes.”
In May 2010, Vergara filed a complaint for injunctive relief and monetary
damages against Coca-Cola. The district court temporarily enjoined Coca-Cola
from advertising, selling, distributing, or disseminating the Spanish Celebration
Mix unless it attributed credit to Vergara as the adapter of the song. This Court
held that the district court did not abuse its discretion by issuing the preliminary
injunction. Hermosilla v. Coca-Cola Co., No. 10-12894 (11th Cir. Mar. 25, 2011).
The district court later granted a summary judgment in favor of Coca-Cola.
The district court ruled that Vergara entered a contract to assign his copyright
interest in his adaptation to Universal. The district court found that “Vergara
agreed to sell his rights to the lyrics for a dollar so long as he receive[d] credit for
his contribution” and Puig accepted that condition of sale on behalf of Universal.
The district court did not err by granting summary judgment in favor of
Coca-Cola because the record establishes without dispute that Vergara assigned
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his copyright interest to Universal. Under Florida law, parties enter a contract
when “there was a definite proposal by one party which was unconditionally
accepted by the other.” Webster Lumber Co. v. Lincoln, 115 So. 498, 504 (Fla.
1927). To make this determination, a reviewing court must “place itself in the
situation of the parties, and from a consideration of the surrounding circumstances,
the occasion, and apparent object of the parties, . . . determine the meaning and
intent of the language employed.” Underwood v. Underwood, 64 So. 2d 281, 288
(Fla. 1953) (internal quotation marks omitted). Vergara stated in his email on
March 4, 2009, that his “only demand” to assign his copyright interest was that he
receive credit as the adapter and producer. Puig “unconditionally accepted” that
condition in his email on March 5, 2009, in which he told Vergara to “count on the
credits on the track.” Puig’s acceptance on behalf of Universal was effective to
create a contract with Vergara because it “match[ed] the terms of [his] offer.”
Gillespie v. Bodkin, 902 So. 2d 849, 850 (Fla. Dist. Ct. App. 2005). The two
emails were “so connected with each other that they may be fairly said to
constitute . . . a complete contract.” Webster, 115 So. at 502.
That Vergara and Universal intended to execute a “subsequent formal,
written contract, does not denote that they did not intend to be bound immediately
by their . . . written negotiations.” Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d
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429, 436 (11th Cir. 1995). Their emails do not contain any language from which
“conflicting legal inferences . . . could be drawn regarding the expressed intent of
the parties so as to alter the legal effect of the undisputed facts of [an] offer [by
Vergara], acceptance, and communication of that acceptance” by Puig. Citizens
Bank of Perry v. Harlie Lynch Constr. Co., 426 So. 2d 52, 54 (Fla. Dist. Ct. App.
1983). Vergara argues, for the first time, that Puig lacked authority to contract on
behalf of Universal Group, but we have “repeatedly held that an issue not raised in
the district court and raised for the first time in an appeal will not be considered by
this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (internal quotation marks omitted).
We AFFIRM the summary judgment in favor of Coca-Cola.
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