Case 3:08-cv-01114-BJM Document 59 Filed 09/24/09 Page 1 of 11
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`
`
` Civil No. 08-1114 (GAG/BJM)
`
`RAFAEL SIERRA-PASCUAL,
`a/k/a Lito MC Cassidy
` Plaintiff,
` v.
`PINA RECORDS, INC. et al.,
` Defendants.
`
`
`
`OPINION AND ORDER
`Plaintiff Rafael Sierra-Pascual a/k/a Lito MC Cassidy (“Sierra”) filed this action, alleging
`copyright infringement through the unauthorized publication and distribution of the song “Noche
`Triste.” Co-defendant Rafael Pina-Nieves (“Pina”) moves for partial summary judgment and
`requests the dismissal of plaintiff’s action for lack of subject matter jurisdiction. After reviewing
`the pleadings and pertinent law, the court DENIES co-defendant Pina’s motion for summary
`judgment (Docket No. 41).
`I.
`Standard of Review
`Summary Judgment is appropriate when “the pleadings, depositions, answers to
`interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
`genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
`of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue is
`genuine if ‘it may reasonably be resolved in favor of either party’ at trial, and material if it
`‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’” Iverson
`v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (citations omitted). The
`moving party bears the initial burden of demonstrating the lack of evidence to support the non-
`moving party’s case. Celotex, 477 U.S. at 325. The nonmoving party must then “set forth specific
`facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the court finds that some
`genuine factual issue remains, the resolution of which could affect the outcome of the case, then the
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`Case 3:08-cv-01114-BJM Document 59 Filed 09/24/09 Page 2 of 11
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`Civil No. 08-1114 (GAG/BJM)
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`court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
`(1986).
`When considering a motion for summary judgment, the court must view the evidence in the
`light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of
`any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the court
`does not make credibility determinations or weigh the evidence. Id. Summary judgment may be
`appropriate, however, if the non-moving party’s case rests merely upon “conclusory allegations,
`improbable inferences, and unsupported speculation.” Forestier Fradera v. Municipality of
`Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166,
`173 (1st Cir. 2003)).
`II.
`Factual & Procedural Background
`Plaintiff Sierra is a recording artist who is known by the artistic name of “Lito MC Cassidy.”
`Co-defendant Pina is the chief executive officer and/or owner of co-defendant RAP Records, Inc.,
`also d/b/a Pina Records, Inc. (“Pina Records”). According to the complaint, in 1999 Sierra and his
`then-partner, Rafael Polaco-Molina, signed an exclusive recording contract with Pina Records,
`owned at the time by co-defendant Pina’s father, Rafael Pina-Gomez. Upon Pina-Gomez’s passing
`in 2000, Sierra agreed to continue recording with Pina Records, under the same terms and
`conditions. After said contract expired in 2004, Sierra continued to collaborate with Pina Records.
`At some point between 2005 and 2006, Sierra and Pina Records artist Kenny Vazquez
`(“Vazquez”), artistically known as “Ken-Y,” recorded the song “Noche Triste” in Sierra’s private
`studio. In his deposition, Sierra referred to his recording with Vazquez as a collaboration between
`partners from the same company. Sierra also testified that he wrote the lyrics to the song and hired
`Rafael Cardona (“Cardona”), artistically known as “D.J. Rafo,” to compose the music. Co-defendant
`Pina argues that Sierra’s deposition testimony suggests a different version of events: that Sierra gave
`a recording of the a capella lyrics to an Omar Rodriguez, so that he and another individual by the
`name of Joel Cruz would find a producer to compose the music. (See Docket No. 42-3.)
`Nonetheless, the work-for-hire agreement, dated August 23, 2006, states that Rompecuello Records,
`Inc., a company owned by Sierra, shall be considered the author and sole owner of Cardona’s
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`intellectual property as regards the song “Noche Triste,” which would be published in an album
`tentatively titled “Il Capo di Tutti Capi.”
`After this initial recording, the song was released on the internet. Sierra testified that Pina
`was unhappy with him upon hearing “Noche Triste,” for having recorded a song with one of his
`artists without his permission. When the song became popular, however, Pina asked Sierra if he
`would come to Pina Records and re-record the song with Vazquez because he did not like the quality
`of the sound recording. Sierra agreed, and the song was recorded once more. According to Sierra’s
`deposition testimony, in this second recording the original beat was re-mixed and mastered, with
`“maybe one or two instruments” added, but the lyrics to the song remained the same. (Docket No.
`48-3 at 7.) Subsequently, Pina released the new version of “Noche Triste” to radio stations, with
`Sierra’s consent. Sierra also agreed to take part in a music video, using the sound recording prepared
`at Pina Records. Thus, Sierra voluntarily participated in both the re-recording and the music video,
`which were paid in full by Pina Records.
`The parties profered a Certificate of Registration issued by the United States Copyright
`Office in which plaintiff Sierra appears as the author of the music and lyrics for “Noche Triste.”
`According to this document, the effective date of registration was October 10, 2006. At some point
`in 2006 –apparently after Sierra filed for copyright protection–, “Noche Triste” was released for sale
`by Pina Records in an album titled “Masterpiece.” The song was also performed on multiple
`occasions by Vazquez, allegedly without Sierra’s consent. Sierra testified that when he agreed to
`re-record the song and appear in the music video, he thought those materials would only be used as
`promotional tools, and not for sale as part of an album. In his answer to interrogatories, Sierra
`alleges that he insisted on this point, stating that “[he] would go along only if the song were released
`for promotional purposes only, and that it would only be published on [his] next album.” (Docket
`No. 48-6 at 4.) In contrast, Pina asserted in his deposition that he had authorization from Sierra to
`use his recordings or vocal performances in the release of the song “Noche Triste,” and “that was
`the same song that was included as a bonus track in the Masterpiece album.” (Docket No. 51-2 at
`3.) As to the authorship of “Noche Triste,” Pina also testified that the song had actually been
`composed by the artistic group known as “Los Magnificos,” which comprised, among others, Pina,
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`Case 3:08-cv-01114-BJM Document 59 Filed 09/24/09 Page 4 of 11
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`Civil No. 08-1114 (GAG/BJM)
`Sierra, Cardona, and Ken-Y.
`Sierra filed suit against Pina, Pina Records, Universal Music Latino, Universal Music
`Distribution Corp., and other unnamed defendants, for the violation of his exclusive rights under the
`Copyright Act, 17 U.S.C. § 1101, by publishing, synchronizing with images, and distributing the
`song “Noche Triste” without Sierra’s consent. (See Amended Complaint, Docket No. 3.) Co-
`defendant Pina now moves for summary judgment (Docket No. 41), which motion was timely
`opposed by the plaintiff (Docket No. 48).
`III. Discussion
`Co-defendant Pina argues that (1) the court lacks subject-matter jurisdiction because the
`plaintiff’s copyright registration is invalid, (2) the plaintiff granted the defendants an implied, non-
`exclusive license to publish the song in Pina Records’ next album, and (3) the plaintiff is estopped
`by his own acts from bringing a copyright infringement action against defendants. The court will
`address each of the co-defendant’s arguments in turn.
`A.
`Copyright Registration
`Title 17 of the United States Code, which governs copyrights, provides in section 411 that
`“no action for infringement of the copyright in any United States work shall be instituted until
`preregistration of the copyright claim has been made in accordance with this title.” 17 U.S.C. §
`411(a). The First Circuit of Appeals has held that this rule is jurisdictional. See Torres Negron v.
`J & N Records, LLC, 504 F.3d 151, 156 (1st Cir. 2007) (collecting cases). “[A]lthough copyright
`protection attaches the day original expression is fixed in a tangible medium, and thus an infringer
`may be liable for infringement from that day forward, registration of the copyright is a prerequisite
`to suit under the Copyright Act.” Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147,
`1160 (1st Cir. 1994) (citiations omitted).
`Pina alleges that the court lacks subject-matter jurisdiction because Sierra’s copyright
`registration is invalid. He argues that Sierra made material misrepresentations to the Copyright
`Office in his application for registration of the copyright, to wit, that he was the sole author of the
`song “Noche Triste.” His contention is that “Noche Triste” was composed by the group known
`artistically as “Los Magnificos,” which included Sierra, Cardona, Vazquez, and co-defendant Pina,
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`Case 3:08-cv-01114-BJM Document 59 Filed 09/24/09 Page 5 of 11
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`and that Sierra failed to explain these facts in his application. Pina also points out that, though Sierra
`claims to have written the lyrics to the song and then hired Cardona to compose the music, Sierra’s
`application for copyright registration made no mention of this “work for hire” agreement.
`As pointed out by Sierra, although inaccuracies in a copyright registration may bar actions
`for infringement under the Copyright Act, “immaterial, inadvertent errors in an application for
`copyright registration do not jeopardize the validity of the registration.” Data Gen. Corp., 36 F.3d
`at 1161. “In general, an error is immaterial if its discovery is not likely to have led the Copyright
`Office to refuse the application.” Id. “Mistakes such as an incorrect date of creation or failure to
`list all co-authors easily qualify as immaterial because the Copyright Office’s decision to issue a
`certificate would not be affected by them.” Torres-Negron, 504 F.3d at 158 (citing Data Gen. Corp,
`36 F.3d at 1163) (stating that inadvertant failures to list preexisting works or coauthors are
`encompassed by the rule excusing immaterial mistakes)). However, “where a plaintiff’s registration
`was procured through fraud . . . the registration becomes invalid and the courts lack jurisdiction over
`the case.” Id. at 162; see also 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §
`7.20, at 7-201 (“[A] misstatement or clerical error in the registration application, if unaccompanied
`by fraud, should neither invalidate the copyright nor render the registration certificate incapable of
`supporting an infringement action . . . If the claimant wilfully misstates or fails to state a fact that,
`if known, might have caused the Copyright Office to reject the application, then the registration may
`be ruled invalid.”).
`Here, Pina’s argument is that the plaintiff misstated his ownership over the copyright in the
`application for registration (1) because he did not specify that he gained complete ownership over
`the song through a work-for-hire agreement and/or (2) because he knew he could not attribute sole
`authorship to himself, having collaborated with “Los Magnificos” during the song’s recording.
`Under the controlling jurisprudence, these misstatements only jeopardize the validity of the
`registration if they would’ve been material to the Copyright Office’s determination to issue the
`certificate, or if there is a finding of fraud or intentional misrepresentation. See Torres-Negron, 504
`F.3d at 158.
`Copyright ownership under the Copyright Act “vests initially in the author or authors of the
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`work.” 17 U.S.C. § 201(a). Sierra has correctly pointed out that “[i]n the case of a work made for
`hire, the employer or other person for whom the work was prepared is considered the author for
`purposes of [the Copyright Act], and . . . owns all the rights in the copyright.” 17 U.S.C. § 201(b).
`Thus, although, “as a general rule, the author is the party who actually creates the work . . . [t]he Act
`carves out an important exception . . . for ‘works made for hire.’” Comm. for Creative Non-
`Violence v. Reid, 490 U.S. 730, 737 (1989). “If the work is for hire, ‘the employer or other person
`for whom the work was prepared is considered the author’ and owns the copyright, unless there is
`a written agreement to the contrary.” Id. (quoting 17 U.S.C. § 201(b)). In this case, Sierra and
`Cardona entered into an agreement wherein Cardona expressly agreed that his composition of the
`music for “Noche Triste” would be done as a work for hire (see Docket No. 48-4 at 1). This
`agreement predates the certificate of copyright issued by the Copyright Office by two months (see
`Id. at 2; Docket No. 42-5). Therefore, assuming the validity of the work for hire agreement between
`Sierra and Cardona, by the time Sierra applied for registration with the Copyright Office, he had
`become the author “for purposes of [the Copyright Act], and own[ed] all the rights in the copyright.”
`17 U.S.C. § 201(b). That being the case, the inclusion of the work for hire agreement in his
`application for copyright registration “is not likely to have led the Copyright Office to refuse the
`application.” Torres-Negron, 504 F.3d at 158. Consequently, Sierra’s misstatement in this regard
`cannot invalidate his copyright registration.
`Pina’s alternative argument – that Sierra had the obligation to disclose that the song was a
`collaborative work by “Los Magnificos” as a group– also falls short of rendering Sierra’s copyright
`registration invalid. In essence, Pina is arguing co-authorship as a defense to the copyright
`infringement claim. The Copyright Act specifically recognizes that more than one person may be
`attributed authorship to a particular work. It defines “joint work” as “a work prepared by two or
`more authors with the intention that their contributions be merged into inseparable or interdependent
`parts of a unitary whole.” 17 U.S.C. § 101. A co-authorship claimant bears the burden of
`establishing that each of the putative coauthors (1) made independently copyrightable contributions
`to the work; and (2) fully intended to be co-authors whose respective contributions would be merged
`into a joint work. C&C Entertainment, Inc. v. Rios-Sanchez, 208 F. Supp. 2d 139, 142 (D.P.R.
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`2002) (citing Thomson v. Larson, 147 F.3d 195 (2nd Cir. 1998) (citing Childress v. Taylor, 945 F.2d
`500, 505 (5th Cir. 1991) (establishing “the test”))); see also Cambridge Literary Properties, Ltd. v.
`W. Goebel Porzellanfabrik G.M.b.H. & Co. Kg., 510 F.3d 77, 88 (1st Cir. 2007).
`With regard to the first element of the test for joint authorship, an author’s contribution is
`independently copyrightable if the contribution “represents original expression that could stand on
`its own as the subject matter of copyright,” Erickson v. Trinity Theater, Inc., 13 F.3d 1062, 1069
`(7th Cir. 1994) (citation omitted). In other words, if it is an “original work . . . fixed in a tangible
`medium of expresion.” 17 U.S.C. § 102. A work of authorship is considered "original" if the work
`1
`is independently created by the author, and it possesses at least some minimal degree of creativity.
`CMM Cable Rep, Inc., v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1516 (1st Cir. 1996); Cabrera
`v. Teatro del Sesenta, Inc., 914 F. Supp. 743, 762 (D.P.R. 1995).
`In the present case, Pina’s argument of co-authorship is based on the blanket statement that
`“[t]he music of ‘Noche Triste’ was composed by a group artistically known as ‘Los Magnificos’
`which members included Cardona, Kenny Vazquez, and co-defendant Rafael Pina.” (Docket No.
`41.) However, there is no evidence on the record, nor any allegations, as to the extent of
`participation that each of the members had in the creation of the sound recording and/or musical
`composition at issue in this case, so as to allow the court to determine whether Pina provided original
`expression, independently subject to copyright protection. Though, “[t]here is little question but that
`a performer’s rendition of a work written by another may in itself constitute an original work,” 1-2
`Nimmer on Copyright § 2.10[A][2][a], if the producer’s only basis for claiming original
`contribution were the act of “setting up the recording session,” it would be ill-based. Forward v.
`Thorogood, 985 F.2d 604 (1st Cir. 1993) (holding that producer who arranged and paid for recording
`sessions was not co-author). “This is no more an act of ‘authorship’ than it is the act of one who
`makes available to a writer a room, a stenographer, a typewriter, and paper.” 1-2 Nimmer on
`
` The Copyright Act specifically includes musical works as one such category of original
`1
`work. 17 U.S.C. § 102. Sound recordings are also included in the Act, as distinguishable from the
`underlying musical composition. Id.; 1-2 Nimmer on Copyright § 2.10.
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`Copyright § 2.10[A][2][b]. On the other hand, a producer who engages in artistically supervising
`and editing the production might very well have sufficient basis for a claim of original contribution
`in the sound recording. See Forward, 985 F.2d at 60. Though the court can be fairly certain that
`both Sierra and Vazquez appear on the recording performing the lyrics to the song written by Sierra,
`it is unclear to what extent Pina or Cardona participated in this artistic production. This raises a
`question of material fact not susceptible to adjudication through summary judgment.
`Even assuming, however, that Pina contributed original expression to the sound recording
`and that, therefore, the song over which Sierra claimed copyright consistuted a work of joint
`authorship, the court considers that this is not information that is “likely to have led the Copyright
`Office to refuse the application.” Torres-Negron, 504 F.3d at 158. In a joint work, the joint authors
`hold undivided interests in a work despite any differences in the quality or quantity of each author’s
`contribution. 17 U.S.C. § 201; see also 1-6 Nimmer on Copyright § 6.08 (2009) (“In the absence
`of agreement to the contrary, all joint authors share equally in the ownership of the joint work. This
`is true, even where it is clear that their respective contributions to the joint work are not equal.”)
`(footnotes omitted). Each author is therefore a co-owner of the copyright. Hence, every author
`maintains the right to use or license the work, subject only to an accounting of any profits to the
`other co-owner. Erickson, 13 F.3d 1062, 1068 (7th Cir. 1994); Childress, 945 F.2d at 505. Given
`this legal framework, information as to co-authorship with regards to “Noche Triste” is not likely
`to have led the Copyright Office to deny Sierra’s copyright registration. Cf. Data Gen. Corp, 36 F.3d
`at 1163) (stating that inadvertent failure to list coauthors is encompassed by the rule excusing
`immaterial mistakes).
`Finally, Pina also claims that Sierra willfully witheld the information here at issue, a
`fraudulent act that would in itself invalidate the copyright registration. However, a party seeking to
`establish a fraud on the Copyright Office, and thereby rebut the presumption of copyright validity,
`bears a heavy burden, see 2 Nimmer on Copyright § 7.20[B][1] (1997). The party asserting fraud
`must establish that the application for copyright registration is factually inaccurate, that the
`inaccuracies were willful or deliberate, and that the Copyright Office relied on those
`misrepresentations. See Lennon v. Seaman, 84 F. Supp. 2d 522, 525 (S.D.N.Y. 2000) (cited in 2
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`Nimmer on Copyright § 7.20[B][1] (2009)); see also Whimsicality, Inc. v. Rubie's Costume Co.,
`Inc., 891 F.2d 452, 455-56 (2d Cir. 1989) (cited in Torres-Negron, 504 F.3d at 161). As previously
`stated, there are issues of material fact as to whether or not the application for copyright registration
`was factually inaccurate where it did not include the mention of co-authorship. Meanwhile, given
`the applicable law regarding works for hire, it is not a necessary conclusion that Sierra’s failure to
`mention how he acquired ownership over the copyrights to the musical composition “Noche Triste”
`was willful or deliberate, if Sierra believed he was the rightful owner of those rights prior to his
`application for registration. Since co-defendant Pina offers no other proof in this respect, of willful
`or deliberate mistatements, the court cannot make a determination at this point that Sierra perpetrated
`fraud against the Copyright Office.
`Therefore, the court DENIES summary judgment on this ground.
`B.
`Implied Non-Exclusive License
`Pina next raises the defense that Sierra granted the defendants an implied, nonexclusive
`license to publish “Noche Triste” in Pina Record’s next album.
`Under the Copyright Act, the owner of a copyright has the exclusive right to copy, distribute
`or display his work. See 17 U.S.C. § 106. The owner of a copyright can transfer ownership of the
`copyright by selling it or by exclusively licensing it. See id. § 101. Exclusive licenses, however,
`must be in writing. See id. § 204 (a). Notwithstanding, while 17 U.S.C. § 204 provides that all
`transfers of copyright ownership, including transfers by exclusive license, must be in writing, a
`nonexclusive license is expressly removed from the scope of section 204 because a nonexclusive
`license does not amount to a “transfer” of ownership. See 17 U.S.C. § 101; John G. Danielson, Inc.
`v. Winchester-Conant Properties, Inc., 322 F.3d 26, 40 (1st Cir. 2003). “A copyright owner may
`grant such nonexclusive licenses orally, or they may be implied from conduct which indicates the
`owner’s intent to allow a licensee to use the work. Uses of the copyrighted work that stay within the
`scope of a nonexclusive license are immunized from copyright infringement suits.” John G.
`Danielson, 322 F.3d at 40 (internal citations omitted).
`However, “[t]he burden of proving the existence of such a license is on the party claiming
`its protection, the licensee.” Id. (citing Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2nd Cir.
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`1995). Moreover, “[i]mplied licenses are found only in narrow circumstances.” Id. (citing
`Smithkline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21, 25 (2nd Cir.
`2000) (citing Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir.1990))). In Effects Assocs.,
`the court wrote that a nonexclusive license may arise by implication where the creator of a work at
`a defendant’s request “hands it over, intending that defendant copy and distribute it.” 908 F.2d at
`558 (cited in C & C Entertainment, Inc. v. Rios-Sanchez, 208 F. Supp. 2d 139 (D.P.R. 2002)).
`Nevertheless, “[t]he touchstone for finding an implied license . . . is intent.” John G. Danielson, 322
`F.3d at 33 (citations omitted). Since a nonexclusive license does not transfer ownership of the
`copyright from the licensor to the licensee, the licensor can still bring suit for copyright infringement
`if the licensee’s use goes beyond the scope of the nonexclusive license. Effects Assocs., 908 F.2d
`at 558 n.5.
`Pina argues that Sierra manifested his intent to grant him a nonexclusive license by re-
`recording the song and participating in the music video with knowledge that this material was going
`to be copied and distributed. In his deposition testimony he stated that he had “authorization for
`which [he] produced a video and [Sierra] participated in the video and in the final tape recording of
`the same - - - and that was the same song that was included as a bonus track in the Masterpiece
`Album.” (Docket No. 51-2 at 3.) Moreover, he points out that the recording and music video were
`paid in full by Pina Records, with knowledge by the plaintiff, yet plaintiff never voiced an objection
`to the publication of either the song or the music video. On the other hand, Sierra testified in his
`deposition that Pina wanted to play the recording on the radio in order to promote the song and, after
`the song became a hit, he suggested that they make a video for the same purpose. (See Docket No.
`48-3 at 7-8.) Plaintiff also testified that he believed this to be a promotional tool, both for himself
`and for Pina Records artist “Ken-Y,” and that he did not expect Pina to publish the song in any of
`Pina Record’s albums, since he was planning on including the song in his own upcoming record.
`(Id.) Plaintiff went further by stating in his answers to interrogatories that before he and the
`defendants undertook these endeavours, they expressly agreed that the song would not be published
`on any album for distribution or sale, other than Sierra’s next production. (See Docket No. 48-6 at
`7.) Thus, even if it could be implied from his conduct that Sierra granted Pina a nonexclusive license
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`Case 3:08-cv-01114-BJM Document 59 Filed 09/24/09 Page 11 of 11
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`11
`Civil No. 08-1114 (GAG/BJM)
`to use the song “Noche Triste,” a reasonable jury could still find that the license was limited to
`promotional uses and did not include the right to distribute the song and sell it for profit in the
`“Masterpiece” album.
`Because there are issues of fact regarding the parties’ intent, which go to a determination of
`the extent of any implied nonexclusive licenses, the court DENIES summary judgment on this
`ground.
`Estoppel
`C.
`Finally, Pina argues that Sierra is estopped by his own actions from an infringement action
`against the defendants. Under Plumley v. S. Container, 303 F.3d 364, 374 (1st Cir. 2002), equitable
`estoppel requires the following: “(1) the party to be estopped must know the facts; (2) the party must
`intend that his conduct be acted upon (or must act in a way that leads the party asserting the estoppel
`to believe it is so intended); (3) the latter must be ignorant of the true facts; and (4) he must rely on
`the estopping conduct to his detriment.” The court understands that there are issues of material fact
`as to the first and third prongs of the estoppel doctrine. As previously stated, it is unclear from the
`facts presently before the court whether or not Sierra knew that the song would be included in the
`co-defendants’ album, since it is disputed that the agreement between the parties included the
`distribution and sale of the song. It is plausible that the parties agreed to a limited release of the
`song, for promotional purposes only. For this reason, it is also unclear whether or not Pina was
`ignorant of Sierra’s true intent and proceeded to include the song in the “Materpiece” album
`knowing that an infringement suit would likely follow. Therefore, the court must DENY summary
`judgment on this ground.
`III.
`Conclusion
`For the foregoing reasons, the court DENIES co-defendants’ motion for partial summary
`jugment (Docket No. 41).
`SO ORDERED.
`In San Juan, Puerto Rico this 24th day of September, 2009.
` S/Gustavo A. Gelpí
`GUSTAVO A. GELPÍ
` United States District Judge
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