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District court suspends previous finding that pop star Shakira's song “Loca” infringed Dominican songwriter’s copyright, in light of newly discovered evidence that plaintiff fabricated evidence and committed perjury.

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 a Dominican performer Eduard Bello, known as El Cata, and the song “Loca” released in 2010 and 2011 by the Latin-American pop star Shakira, infringed Mayimba’s copyright in a song named “Loca Con Su Tiguere” that was allegedly written in 1998 by a Dominican songwriter named Ramon Arias Vasquez (Arias).

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 and Shakira’s songs infringed Arias’ work. The court based its ruling on evidence and testimony that Arias’ song was recorded onto a cassette tape in 1998. The court issued a finding of liability, but deferred entry of final judgment until a determination of damages.

Four months later, in December 2014, defendants moved to partially vacate the district court’s findings pursuant to Federal Rules of Civil Procedure 59(a) and 60(b), based on newly discovered evidence. In support of their motion, defendants presented an affidavit from Bello, who had appeared in court and testified during the bench trial. During cross-examination at trial, Mayimba’s counsel asked Bello whether he knew of a musician known as DJ Japones, and Bello testified that he did not know the individual. After trial, however, Bello located DJ Japones in the Dominican Republic, showed him a copy of Arias’ cassette tape and played the song recorded on the tape. Upon hearing the song, DJ Japones told Bello that he—not Arias—had created the song’s underlying music in 2009. Additionally, DJ Japones asserted that the tape could not have been made in 1998, because Jhoan Gabriel Gonzalez Gomez, the man depicted on the cover of the tape, was only nine years old in 1998.

DJ Japones’ information led the defendants to accumulate additional evidence, including an affidavit from Gomez acknowledging that his photograph on the cover of the tape was taken in 2011, and that Arias and others had offered Gomez $18,000 to participate in the lawsuit against the defendants, although he was never paid. The defendants also submitted a declaration from Arias’ brother, Juan Carlos Arias, admitting that the tape was created in 2010, but was made to look as though it had been created in the 1990s, and that he had instructed Juan Pablo West Smith how to testify regarding the creation of the tape. At trial, Smith had testified that he added musical elements to Arias’ vocal track in mid-1997 using the computer program “Frooty Loops,” but defendants submitted an affidavit from a Frooty Loops producer that the software was not released until March 1998.

The court noted that defendants’ motion was brought beyond the 28-day limit under Federal Rules of Civil Procedure 59(a), but that Mayimba had not properly objected to the timeliness of the motion, and circuit courts have held that the deadline is a claim-processing rule, not a jurisdictional limit. The defendants’ motion also was proper under Rule 60(b), which sets a one-year limit for relief from final judgment, where the newly discovered evidence could not have been found with reasonable diligence before trial. Until DJ Japones and the Fruity Loops program were mentioned at trial, the defendants were unaware of their potential involvement in the creation of the tape. Given the newly discovered evidence, the court suspended its previous finding of liability and ordered an evidentiary hearing to determine whether Mayimba committed a fraud on the court by fabricating evidence and committing perjury.