Today we have emergency consulting. My Facebook, Instagram and WhatsApp chats have not stopped buzzing with people asking the title question in various ways. The reason, of course, is the song published by Orishas and Beatriz Luengo these days ( Ojalá pase ), which includes a fragment of Ojalá by Silvio Rodríguez, and has many people wondering if we are facing a copyright infringement in this case.
First of all, I would like to differentiate this case from the simple interpretation and recording of a third-party work, which in many laws and in the practice of the music industry does not require an explicit authorization, as long as the interpreter does not modify the work and he/she records it with the corresponding credit to the composer. Silvio Rodríguez himself has been interpreted and recorded by hundreds of singers from almost every cardinal point and probably not even he knows all the versions of Ojalá that have been made around the world.
But in Ojalá pase we have new work, credited to its new authors/interpreters that incorporates twice a large fragment of the pre-existing work, Ojalá .
Under Cuban law and many of the laws of Latin tradition, unless Silvio or his music editor had expressly authorized this use, it would be illegal. The author (or his assignees in the event that he has assigned that right) is the sole person (exclusively, says the law in most countries) can execute the communication, reproduction and transformation of his work.
Of course, this principle has exceptions, according to the legislation of each country. The most commons are:
-If the work is in the public domain; that is, if the period of protection defined by law has elapsed. The temporary limitation starts counting from the death of the author and therefore is not applicable in this particular case.
- If the work that is used is a folkloric or traditional popular culture work, no known author (neither is the case).
-In some laws the fact that the new creation is a satire or parody of the original is an exception. Nor are we there, strictly speaking. The fragment of the song of the well-known Cuban troubadour is used without variations in its lyrics or melody, as a quote in extenso and not as a parody.
-The quote itself is another exception in some laws, but not any quote. Most laws limit the quote for educational or research purposes. Here it seems useful to dismantle the myth "of the eight bars": the use of a musical fragment within another new musical work, if this fragment has an extension of fewer than eight bars does not automatically make this use lawful. Apparently, some judge once pondered that a small fragment could be considered "quote or tribute" and this belief was extended that the law so provided. In any case, in our legislation jurisprudence is not a source of law. So here either.
That said, the Anglo-Saxon laws (and especially the American ones) have their particularities. Some of these exceptions mentioned above are included in the jurisprudence (which in the United States is a source of law) with the generic appellation of fair use, applicable, in most cases to quotes for academic purposes or creative artistic parody. According to the strict definition, fair use applies to the reproduction or copying of copyrighted material that is done for a limited and “transformative” purpose, such as comment, criticism or parody.
But in the champion country of "freedom of expression", one of the most frequently used uses of this figure is political use: a creator who demonstrates that in his new work he has "appropriated" the work of others because It is predictable that he/she will not get an authorization for the type of use he/she intends to give it. And here, in the Anglo-Saxon fair use, with an openly political profile, it is where it seems that Orishas would be shielded in case the Cuban singer-songwriter tried to sue them.
So, the answer is that a use of this nature is not lawful under most laws, but given the subjective and extremely political nature of the administration of justice, before a lawsuit by Silvio Rodríguez, a judge in the United States could eventually argue an exception for fair use.
If Orishas, who has recorded the song in the United States and has not monetized it at least so far, has sought the advice of any of the expensive lawyers of the American music industry -and it seems so- the real purpose of this new song, “appropriation” included, would not be to earn the few dollars that streaming is generating for artists in these times.
It is clear? Hopefully…
Note: This document does not constitute a legal opinion in opposable law in a court, and is issued for the sole purpose of participating in a debate or conversation in the media and/or social networks. It is issued unless better opinion in law in case of new elements and developments of the events that require evaluation and contextualization by the author.