A lawsuit that claimed the 2021 dance hit “Don’t Be Shy” from Karol G and Tiësto infringed on the copyright of an little-known song by Cuban-American songwriter Rene Lorente was tossed out of court Wednesday in a scathing ruling that blasted Lorente’s “proposed expert” as unqualified and unreliable.
In the 17-page ruling, the federal judge in Florida said Lorente failed to meet the basic requirements to proceed with his claims because his designated musicologist, former Capitol Records A&R executive Richie Viera, lacked the training and experience to reliably state “Don’t Be Shy” was substantially similar to Lorente’s 2000 song “Algo Diferente.”
In copyright infringement cases, if plaintiffs can’t show defendants directly copied their work, they must establish that defendants had “access” to the copyrighted material and that there’s a “substantial similarity” between the works. In Lorente’s case, he made “no attempt to offer proof of direct copying,” so the viability of his lawsuit ended up depending largely on Viera’s expert opinion.
In her withering assessment of Viera’s expertise, the judge said Viera “declined” to define standard musicological terms during his deposition and “refused to explain basic harmonic principles like the ‘circle of fifths.’” She claimed Viera couldn’t even say whether “Algo Diferente” changes from a major to a minor key, and that his report “misidentifies the chords and keys of each song.” Beyond that, Viera also failed to consider “prior art,” meaning other songs with similar elements that came before Lorente’s compensation. The judge called the concept of prior art “a basic step in assessing musical similarity.”
“These lapses only reinforce the conclusion that Viera lacks the expertise to perform the kind of comparative analysis his report purports to offer,” Chief U.S. District Judge Cecilia M. Altonaga wrote in her ruling. “Simply put,” Viera’s opinion lacked the “intellectual rigor” necessary for the court to consider it as reliable evidence, the judge said.
And she didn’t stop there. The judge also challenged Lorente’s claim that his song’s availability on streaming platforms met the requirement for access in the case. According to the ruling, “Algo Diferente” had been played 670 times on YouTube and 2,718 times on Spotify as of June 2022. “Plaintiff points only to [his song’s] presence on digital platforms and inclusion in niche albums as proof that Tiësto and Karol G heard his song. No reasonable jury could find access on such a record,” the judge wrote.
She said based on what she considered reliable evidence in the case, Lorente had no “viable claim” for direct infringement against the artists or vicarious or contributory infringement against any music labels. “The clerk is directed to CLOSE this case,” the judge wrote.
Lorente’s lawyer, Patrick Frank, tells Rolling Stone his client “respects” the judge’s ruling but plans to file an appeal. He says the opinion is “illustrative of the significantly high barriers to entry” that working musicians face when they find themselves “in the unenviable position of having to face off against an industry that has unlimited resources and has no reservation as to dispatching those self-same resources to prevent composers of modest means from asserting their rights.”
Meanwhile, the lead lawyer for Karol G and Tiësto says the judge made the right decision in dismissing the lawsuit, which was seeking more than $50 million in damages. Speaking to Rolling Stone, attorney James Sammataro says the lawsuit “had no merit.”
“One of the frustrating things that we heard throughout this case from the plaintiff was that [our clients] stole his life legacy, his defining work, but there was no evidence of access. This was an obscure song that didn’t have any traction. There was no commercial success. It was on self-distributed albums. And more importantly, there was existing prior art,” Sammataro says. “The alleged similarities were based on a very common music building block, which is the circle of fifths, which has been around literally since Mozart.”
“Don’t Be Shy” was the second single on Tiësto’s seventh studio album, Drive. It shot to Number Four on Billboard’s Hot Dance/Electronic Songs chart and marked the first major music release in English for Karol G, a Colombian superstar.