In copyright infringement dispute over Shakira’s song “Loca,” district court denies plaintiff’s motion to set aside judgment that plaintiff’s work was fabrication and partially grants defendants’ motion for attorneys’ fees and costs and for sanctions against plaintiff’s counsel.

Plaintiff Mayimba Music sued Sony Corporation of America, Sony Music Entertainment, Sony/ATV Latin Music Publishing LLC, Sony/ATV Discos Music Publishing LLC, and Sony/ATV Tunes LLC, claiming that the song “Loca Con Su Tiguere,” released in 2007 by Dominican performer Eduard Bello, known as El Cata, and the song “Loca,” released in 2010 and 2011 by Latin American pop star Shakira, infringed Mayimba’s copyright in a song named “Loca Con Su Tiguere” that was allegedly written in 1998 by Dominican songwriter Ramon Arias Vasquez.

Following a bench trial, in August 2014, the district court issued findings of fact and conclusions of law in favor of Mayimba, holding that Arias had a valid copyright in the song, and that Bello’s song, and one of the versions of Shakira’s song, infringed Arias’ work. The court based its ruling on evidence and testimony that Arias’ song was recorded on a cassette tape in 1998.

Four months later, in December 2014, defendants moved for a new trial based on newly discovered evidence that undermined the authenticity of Arias’ cassette tape, a digital copy of which Mayimba deposited with the Copyright Office in November 2011. In light of this evidence, the court suspended its previous finding of liability and ordered a second bench trial to determine whether Mayimba committed fraud on the court by fabricating evidence and committing perjury. (Read our summary of the court’s opinion suspending its previous finding of infringement and ordering a second trial to adjudicate the alleged fraud on the court here.) A second bench trial was held in August 2015. Based on the testimony and evidence presented, the court found that the tape had, in fact, been fabricated in 2010 or 2011 – and not created in 1998, as Mayimba claimed. The court further concluded that because the tape was not a bona fidedeposit copy, Mayimba’s copyright was invalid. Defendants moved for attorneys’ fees and costs and for sanctions against Mayimba’s counsel.

In November 2015, Mayimba moved to set aside the court’s judgment, arguing that defendants presented perjured testimony and fabricated evidence in the secondtrial, and Mayimba’s trial counsel’s (unspecified) psychological or medical condition prevented Mayimba from investigating and fairly presenting its position at the trial, warranting a thirdbench trial.

In support of its motion, Mayimba argued that defendants had presented fraudulent evidence in the second bench trial. The court disagreed, holding that defendants had presented clear and convincing evidence that “completely discredited” Mayimba’s copyright claim. Specifically, defendants presented “unimpeached” evidence that the cassette tape was not created in 1998. The tape’s jacket featured a photograph of an individual, Jhoan Gabriel Gomez Gonzalez, as an adult—but defendants proved that Gonzalez was born in 1989 and was therefore “but nine years old in 1998.” Defendants also presented evidence that other songs on the tape had been composed in 2006 or later. Finding the testimony of Gonzalez and others credible, the court determined that the tape was created much later than 1998, and that Arias’ testimony was fabricated and false.

The court rejected several of Mayimba’s contentions as “nonsense.” Specifically, the fact that Gonzalez’s birth certificate was issued several years after his birth “does not make it false.” And a third party’s comment on a photo of Gonzalez posted by Gonzalez’s mother on Facebook in 2011 was “hardly clear and convincing proof disputing [Gonzalez’s] 1989 birth.” The court also rejected the assertions of Mayimba’s newly disclosed forensic computer expert, contained in an “untested affidavit” and supported by an “inscrutable exhibit,” as conclusory and as proof of nothing. Finally, the court rejected Mayimba’s theories about “possible alterations” made to the tape while it was allegedly outside Arias’ possession as “entirely speculative and unsupported by any evidence.”

The court also found that Mayimba did not make the requisite showing that its trial counsel’s failures were “so egregious and profound that they amount[ed] to the abandonment of the client’s case altogether.” Plaintiff submitted no affidavits describing its attorney’s condition or any medical or psychological diagnosis. The court also rejected Mayimba’s submission of a photo of the attorney at his desk “strewn with papers” amid “substantial disorder,” observing that “lots of fine minds thrive on disorder around them.” Mayimba, the court held, cannot escape the final judgment on the basis of “the quality of counsel whom it voluntarily chose and to whom it remained loyal notwithstanding conduct that it later claimed to be eccentric.”

The court also granted in part defendants’ motion for attorneys’ fees and costs against Mayimba under Section 505 of the Copyright Act, and for sanctions against Mayimba’s counsel. Defendants had not shown that Mayimba and its attorneys knew from the start of the action that the tape had been fraudulently created. However, the court faulted plaintiff and its counsel for failing to withdraw its claim once it was unable to find evidence refuting defendants’ evidence that the tape was fraudulently created. Mayimba instead “doubl[ed] down” by opposing defendants’ motion for a new trial, continuing to assert its claim through the second bench trial and, ultimately, moving to set aside the court’s judgment after the second bench trial. Mayimba’s evidence in support of its motion was not “merely unpersuasive” – it was objectively unreasonable. Moreover, the court found, Mayimba’s attorney’s obstruction and prolonging of the litigation – even after it had become clear that Mayimba’s claim was meritless – was “unreasonable and vexatious” and was undertaken in bad faith. The court granted defendants’ motion for attorneys’ fees and costs, and for sanctions against Mayimba’s attorney (holding him jointly and severally liable for such fees and costs), but only as to fees and costs incurred after defendants moved to set aside the court’s original judgment.