Earlier this month, Bad Bunny's ex-girlfriend sued him for allegedly using a recording of her voice in several of his songs without her consent—a copyright violation that, she claims, entitles her to upwards of $40 million. According to an attorney who spoke with VICE, her case has legs.
The lawsuit centers on a recording that Carliz de la Cruz Hernández made in 2015 while she was dating the Puerto Rican singer and recent Grammy winner. At the time, the two of them were searching for a tag that Bad Bunny—then a relatively unknown aspiring artist—could use in the intros of his songs, according to a copy of the suit reviewed by VICE. They settled on the phrase "Bad Bunny, baby" and decided that de la Cruz Hernández should be the one to say it. She recorded the tag on her phone and sent it to Bad Bunny, who used it in the intro of "Pa Ti," along with a handful of lesser-known tracks he uploaded to SoundCloud.
After he and de la Cruz Hernández broke up in 2016, Bad Bunny stopped using the recording. But in 2022, Jomar D. Dávila Narváez—a representative for Bad Bunny, his manager, and his record label—reached out to de la Cruz Hernández with an offer. They wanted her permission to use the recording in "Dos Mil 16," a track on Bad Bunny's forthcoming album Un Verano Sin Ti. And while they were at it, they wanted to retroactively get her permission to use the recording in "Pa Ti," too. According to the lawsuit, they offered her $2,000. De la Cruz Hernández, who is now an attorney, says she balked at the offer and refused to sign several contracts Bad Bunny's team sent her way. Then Bad Bunny dropped Un Verano Sin Ti—and there, in the opening bars of "Dos Mil 16," was de la Cruz Hernández's voice recording.
De la Cruz Hernández's lawsuit, filed in a court in Puerto Rico, claims that Bad Bunny and his team violated her "self-image" rights, or rights of publicity, among other alleged copyright violations. To better understand the case, VICE called up Ramón G. Vela Córdova, an intellectual property attorney based in San Juan, who weighed in on who he thinks will come out on top.
VICE: Does what Bad Bunny allegedly did—using his ex's voice recording without her consent—violate her publicity rights?
Ramón G. Vela Córdova: If he didn't have permission, it's a violation. Whether you want to see it as a right of publicity or as some sort of privacy right, that's a more technical legal point. But however you want to characterize it, you cannot take someone's voice without their consent and put it in your trap song.
Assuming what's alleged in this lawsuit is true, who would you say has the upper hand?
I think she has a stronger position on the right of the publicity claim. I mean, look: All we've seen is her side of the story, obviously. So it's natural that we would think she has a stronger position. But having said that, it just looks bad. You [Bad Bunny] basically stopped using this recording after 2016. The relationship ended, and you stopped using it. And then, suddenly, in 2022, you wanted to use it. You tried to get permission, but you didn't, and you used it anyway. That just doesn't look good.
Are there any weak points in de la Cruz Hernández's case?
It sounds like they're saying she is the author, or at least the co-author, of the phrase "Bad Bunny, baby." And so her consent to its use was necessary. Any moral rights claim to the phrase is just a non-starter. In copyright, phrases are not protected. If you had a long phrase, maybe. But short phrases—like "Where's the beef?" or "Bad Bunny, baby"—that's just not copyright subject matter. Now, it's possible that a court in Puerto Rico could say that a phrase is protected under the moral rights law. But it's not a very likely argument.
The other main argument is what they described as a self-image claim, which is basically a right of publicity claim. That's when somebody uses your name or your image or your likeness—which includes your voice—for commercial purposes without consent. If [Bad Bunny] didn't have consent, there's absolutely a violation.
The problem is, she was cooperating with him in his musical career until 2016. She knew that urban music artists mention their names in their songs. She decided with him that it would be a captivating idea if the word "baby" were added after the name "Bad Bunny." She had the idea with him that it would be best to record it in her voice. At his request, she recorded various voice memos with the phrase and sent them to him. And the recording was used on various songs while they were still together. All those facts I mentioned are from her complaint; that's what she pleads.
I don't think you have to be a lawyer to see that there's a question here about some sort of an implicit agreement or license. The issue is, what is the content and the scope of that license? That's a key, huge issue. To me, the elephant in the room is: What did you agree to, either explicitly or implicitly, by deciding with him that there should be a recording, making it, and then sending it to him?
It's unlikely that one could argue successfully that he didn't need permission. The issue is: Did he actually have it? Because if she consented, then he should be protected.
What would it take to establish consent? Let's say they exchanged a series of texts in which he said, "I'm going to put this recording in this song," and she said, "Sounds great." Is that enough to constitute a license, even though it's not in a formal legal document?
For that song, absolutely. But I don't think those kinds of text messages help him. The way you just phrased it underscores that the agreement was per song. And [in the lawsuit], she's saying: "Yeah, I consented for the songs while we were together, but I didn't consent after that." If the evidence is like that, that's not good for him. I think it would be better for him if it was vaguer.
She claims that Bad Bunny's team repeatedly tried to purchase the recording from her. How does that color things for you?
What [her lawyers] emphasize in the complaint is that there is a problem of estoppel. The idea of estoppel is, don't contradict yourself. He can't say that he didn't think he needed permission, because he tried to get it. And that would be going against his own actions. It just doesn't look good. If you thought that permission was necessary, then we're going to hold you to that.
You have to look at the specific evidence, though. You have to look at what they said and how things were phrased. Maybe [Bad Bunny's team] made some disclaimers or worded things in a way that kind of threads the needle: "Yes, we're asking permission, but this is to avoid litigation. It's not because we think we need it." Then there would be no estoppel argument. So it just depends. But I do think it's a weak point in his case. It's something that he's going to have to explain.
It's alleged in the complaint that Bad Bunny's team offered $2,000 for the recording. How does that sum strike you?
For Bad Bunny, I think that was extremely stingy. I mean, this is your former girlfriend, for crying out loud. Pay her whatever it takes. You're a gazillionaire. Honestly, it boggles my mind that they didn't make a serious offer. If, in fact, it was limited to $2,000, I don't get it. It's completely ridiculous. This is going to cost them more—multiples more—just in attorney's fees. I really don't understand why they didn't just offer her $50,000 or $100,000 if they really wanted to use that recording. They have money.
“I mean, this is your former girlfriend, for crying out loud. Pay her whatever it takes.”
Let's just think about what value her voice added. You could make the case that, well, it was only used in two songs, and it was only used at the beginning. That's not worth a lot, so we're not going to pay you a lot. But if your fans recognize the line and her voice, and they like it—come on. That's worth more than $2,000. I don't know what it's worth, but it's worth more than $2,000.
If you just look at it from a cold economic logic, I think it was stingy. But then if you add to that the fact that it's his former girlfriend, and he has a lot of money, and she had studied law, so you know you're going to get sued, I just don't understand what they were thinking.
How do you think Bad Bunny's legal team will respond to this lawsuit?
I think they're going to settle. I don't think they're going to want to litigate this. That's why I don't understand why they didn't make a better offer. If a lawyer had sat down with this and really given it some thought, they would've said, "Let's resolve this before it becomes an issue."
Do you envision them at least trying to file a motion to dismiss, and what do you think the upshot of that would be?
Oh, yeah. They're going to file a motion to dismiss, and it's going to be denied. I'm not saying that they could not get anything dismissed. I think the phrase issue that I mentioned earlier—that could perhaps get any claims about the phrase dismissed. But in general, I don't think they're going to get a dismissal because the right of publicity claim turns fundamentally on this question of what they agreed to. A motion to dismiss is just not the right vehicle to deal with something like that.
It's a question of credibility. She's going to say, "It was always our understanding that this was just for the songs that I agreed to." And he's going to say, "No, it was for all my songs." And that's just going to be a matter of credibility, assuming there are no documents that go one way or the other.
And that brings me to another reason I think it's going to be settled. Bad Bunny is a key witness. Is he really going to testify? Are they really going to let him come to Puerto Rico and take the stand? It's going to be a media circus. It strikes me that they're going to be like, "We need to make this go away."
She's asking for upwards of $40 million in damages. How does that number feel to you?
For Puerto Rico, it's huge. Courts here historically have tended to award lower damages. They're claiming $5 million for privacy, $5 million for right of publicity, $5 million in sort of general tort damages—even $5 million is not a low figure in Puerto Rico, and they're asking that for everything. So I think the damages are way out of proportion to what would normally be claimed. They're not going to get that much. I imagine that they're claiming that much because it's Bad Bunny, and why not claim it?
'“They're not going to get that much. I imagine that they're claiming that much because it's Bad Bunny, and why not claim it?”
There's also a statute of limitations issue. For moral rights claims, it's three years. For the privacy or the right of publicity claims, it's one year. Now, this doesn't affect the claims that relate to "Dos Mil 16" because that's from May 2022. But it does affect the "Pa Ti" claims. That's from 2016. Even there, it doesn't eliminate all of them because there are alleged infringements still going on. But it does affect the amount of damages. You're taking away one of the songs from 2016, 2017, 2018, 2019—it's just something that might reduce what she can get.
Let's say they wind up settling. What's the ballpark range you'd expect de la Cruz Hernández to get?
I would say in the low six figures; $100,000 or $200,000, something like that. If you value her right of publicity claim at, say, $500,000 or $1 million, and you divide that by half or by a third, that's what I would be looking at.
If you were representing her, how much would you ask for in settlement negotiations?
If I were representing her, I would start in the seven figures. I would argue, you know, we have a strong right of publicity claim. And you have money to pay. And if we win, the court is not going to treat you nice. But I would do it with the expectation that I'm not going to get that. What are they going to offer as a counter-offer? $50,000? $100,000? Well, let's start at $1 million, and then we can reach an agreement.
How long do you think it might be before this is all over?
I would think that Bad Bunny and company will try for summary judgment. In the motion for summary judgment, you're going, "OK, we've conducted discovery, we have all these documents. Just by looking at the documents and what's alleged in the complaint and what we allege in our answer, there's no liability." A motion for summary judgment is like a trial by documents. I actually won one with this judge once, so I know she doesn't just dismiss them out of hand. I think she'll consider it. But if the issue of what they agreed to turns on credibility, you need them on the witness stand. The judge has to hear them. And you can't do that with documents. You have to have a trial. I think for that reason, even a motion for summary judgment is not going to solve this.
If they aren't successful in getting the case dismissed in summary judgment, I think that's where the pressure builds to settle. So I think this could go on for at least a year while they answer and they conduct discovery—nine months to a year at least. And then I think at that point, if they can't get a summary judgment, then I think that they would make a really concerted effort to settle.
This interview has been edited and condensed for length and clarity.