The Antofagasta Court of Appeals dismissed the protection appeal filed by Andrés Márquez (former member of Illapu) against communicator Sebastián Quinzán and regional councilor Katherine San Martín. The action was taken by the artist because the respondents published a propaganda jingle in favor of Rejection on their social networks, with the melody of the song “I’m coming back to live”.
In the legal text, the musician and composer of the song in question, Andrés Márquez, considers “that the action is based on the illegal and arbitrary act consisting of using without authorization the music of the work “I return to live” in a propaganda jingle to favor of the rejection option of the constitutional plebiscite, launched and disseminated through social media platforms. The above, violating the guarantee contained in article 19 No. 4, 24, 25 and 26 of the Political Constitution of the Republic and Law No. 17,336 on intellectual property.
And it adds that “the respondent’s publications contain messages in favor of” rejection “, in which a video with photographs that has been shared by Instagram is observed, and in which the subject is attributed to the “Grupo Illape”, with the melody of the original song, but with different lyrics. Likewise, a publication was made on Tiktok, in which the audio is accompanied by a photograph of the Illapu group and the logo (registered trademark) in which the letter u is changed to the letter e”.
Freedom of expression
However, the lawyers of both respondents emphasized that it is an act that is not illegal, thanks to the guarantees of freedom of expression, since neither would have tried to award the song.
In particular, for the lawyer Dayanne Gandarillas Paz, representative of Sebastián Quinzán, “the facts denounced are the effect of the guarantee of freedom of expression, enshrined in article 19 No. 12 of the Constitution, whose sole objective is to express a position to through social networks, which is not related to the appellant. The respondent has only promoted listening to the group “Illape”, without claiming the song as his own or trying to attack the actor. In addition, it has not been intended to profit from the dissemination of the jingle or promote a certain political sector.
Daniel Guevara Cortés, representative of Katherine San Martín, showed a similar position, pointing out that “a song has not been improperly used, but the guarantee of free expression was used. In addition, he indicated that the group “Illape” is a parody of the group Illapu and that she has not attributed the original song nor has she profited from it. He was not the one who created the video either, but only shared it on social networks, with no intention of appropriating the song. Likewise, he made it clear that he deleted the publications in which he shared the video from his social networks. He added that the purpose of the action is to censor her in her capacity as a public authority and because she has expressed her position in favor of “rejection”, contrary to the appellant’s group, which has publicly expressed itself in favor of “approval”.
With all this, the Court of Antofagasta considered “that there are no undoubted constitutional rights or guarantees”, although it did ensure that the facts denounced “could configure any of the crimes regulated in Law No. 17,336 on intellectual property, such as, for example, contained in letters a) and b) of article 79 or article 79 bis, or fall within the exceptions of article 71”.
Likewise, the ruling maintains that “it must necessarily be concluded that the discussion of the proceedings escapes the object of the protection appeal, an action of a precautionary and emergency nature, since in order to resolve the dispute, it is necessary to prove a series of aspects related to the existing conflict. between the parties, precisely to clarify the events that occurred. Then, it is necessary that the matter be known through a declaratory instance of rights, where the parties can make allegations and render the evidence they deem pertinent.
“That as has been reasoned in the preceding considerations, not being unquestionable rights and the matter brought to the attention of this Court exceeds the competence of a constitutional action, the action must be rejected”, concludes the Court.