The release of Shakira’s new song in collaboration with the composer and DJ Bizarrap became an explosive phenomenon on digital platforms. The topic BZRP Music Sessions #53surprised millions of netizens in the world by having a letter loaded with darts against Gerard Piqué and Clara Chía.
Despite the fact that the musical work was released several days ago, the different verses contained in the new viral success of the artist from Barranquilla They were very well received by users of different digital platforms.
For this reason, phrases like “I only make music, sorry that I splashed you”, “Women don’t cry, women bill”, “You traded a Rolex for a Casio” either “I was too big for you and that’s why you’re with someone just like you”, They continue to star in all kinds of memes, video reactions, and other types of publications that circulate on social networks.
In fact, All kinds of parodies have started to appear where social media users use the music, scenes from the original music video and elements of the lyrics of the song ‘BZRP Music Sessions # 53′ to produce new content that is used to make fun of a everyday situationpromote a service or simply make fun of the Colombian singer.
Despite the fact that content creators, influencers and users of social networks believe that it is possible to generate all kinds of parodies without any consequence, in certain cases there is the possibility that the authors of said videos could expose themselves to legal sanctions.
Due to this situation, WEEK consulted with intellectual property rights experts to find out if it is possible that a user of digital platforms may receive some type of penalty for creating parodies of a music video that is popular on social media.
Is there a penalty for making parodies of Shakira’s song on social networks?
According to Karl Mutter, a lawyer for CMS Rodriguez-Azuero, this scenario is relative, since the songs are works protected by copyright and their owner has the right to prevent others from using them, especially when this can generate economic income. .
But these copyrights have limits and some unauthorized uses are allowed by law, giving precedence to other types of rights such as right to education or in this case to free expression.
Precisely one of those exceptions to copyright is that of parody (also called “caricaturization), allowed in Colombia by literal d) of Article 16 of Law 1915 of 2018. Being activities or initiatives through which someone else’s work is taken and used without asking for authorization, generally to express own opinion.
So that parodies are allowed if the following specific conditions are met:
The original work must have been previously disclosed to the public, the transformation must take place for caricature purposes and must allow the public to distinguish it from the original work without confusion.
When these conditions are met, it would be considered a new work that the author can also use, publish and exploit economically.
“In the case of this catchy song that has already been made public, if new works appear that transform the original for parody or caricature purposes, and that transformation does not imply a risk that the public will think it is the original work, it does not interfere with the exploitation of the original work and does not unreasonably prejudice the legitimate interests of the owner of the original work, all parodies can proceed on social media,” Mutter explained.
In which case can a sanction be produced?
As indicated to WEEK Lola Kandelaft, CMS Rodriguez-Azuero attorney, in the event that a parody does not meet the criteria described in the previous point, it could be considered as infringing the copyright of the artist of the original work.
The songs have an owner. This means that not everyone can use them, without having the permission of their author.
“When we talk about songs, or even audiovisual works, as in the case of the collaboration between Shakira and BZRP, there are rights to the melody, to the lyrics and even to the video”, the lawyer stressed.
Therefore, before any unauthorized use, the owner of the work can initiate the corresponding legal actions, both civil and criminal.
What kind of penalty would there be?
The lawyers specified that a reprimand could be presented at the level of copyright infringement, an action that is considered a crime punishable by a imprisonment of up to five years and a fine of up to 1,000 SMLMV.
At the civil level, the holder of the right can bring forward a lawsuit with the aim of recovering the economic damages caused.
How would the penalty be applied?
Karl Mutter indicated that initially it will be necessary to go to the competent authorities so that they initiate the corresponding actions. The claim for infringement must be filed before the judges of the circuit or the National Directorate of Copyright and for criminal matters a complaint would be made before the Office of the Attorney General of the Nation..
Could Casio or Twingo take action against Shakira for her song?
Lola Kandelaft indicated that trademarks also have protection (especially if they are registered), they have owners and cannot be used without their authorization. But just like copyrights, they have limits. Above all, because in a case like that of the Colombian song, a difference must be made between using the brand or mentioning it.
Trademarks have the main function of identifying products or services in the market. That is, if another company tries to sell Casio brand watches, the Japanese company would have every right to prevent such use.
“In this case neither Shakira nor Bizarrap are trying to sell watches or carsthen there would be no place for a lawsuit for trademark infringement”, Kandelaft clarified.
However, if the song were to state that Casio or Renault’s products are undesirable or inferior to their competitors, then there could be room to take actions more focused on other aspects of law and less on property. intellectual. This is because it could be a probable attack on your reputation or good name.
“But in the lyrics of Shakira’s song, she does not offer false information about the Casio or Renault Twingo brands, or at least not directly, and it would have to be shown that there is a real damage for a lawsuit to prosper, ”said the lawyer.