FUSTÉ OVERLOOKS THE $43,405 LUCECITA PERFORMANCE OF GÉNESIS
Incredible: The videotaped act that never occured
In the Venegas v LAMCO (ACEMLA) and combined Venegas vs. Peermusic lawsuits, a very strange, incredible and obvious oversight (or was it something else?) occurred.
In 1993, local Bank Banco Popular de Puerto Rico (BPPR) made their inaugural (now yearly) Christmas television special program. Reportedly this program had the highest viewer rating in the history of Puerto Rico television. One of the highlight of the program was the appearance of the great Lucecita, the "national voice" of Puerto Rico. She sang, as everyone expected, the Guillermo Venegas song, Génesis, her all time greatest hit, the song that catapulted her into the international limelight when she won an important international song competition in Mexico in 1969.
Some facts about the performance:
a. The song was licensed in 1993 by Peermusic, a rogue claimant to the song rights.
b. A videotape of the television program was produced for sale in stores by BPPR. Sale of the videotape continued until at least 2003.
c. In 1999 or so, Banco Popular paid LAMCO $43,405 for the performance of the song Génesis, as well as $16,000 in royalties for the videotape sales.
d. When the Venegas heirs approached BPPR for payment also for the performance and videotape royalties, BPPR decided it was better to sue Peermusic, LAMCO and GVL Inc. (the Venegas publishing company).
e. The evidence that the song Génesis was performed was the for sale videotape of the BPPR television program (BPPR paid $16,000 in royalties.... a lot of money for a song not in the tape!!!), the fact that both Peermusic and LAMCO licensed the performance and there were hundreds of thousands of witnesses, including Banco Popular executives, that Banco Popular paid $43,405 for the performance and that about a million persons (1/3 of Puerto Rico's population) saw the program or videotape. Also, in the Banco Popular lawsuit against Peemuscc / LAMCO / Venegas, no one had claimed that the lawsuit made no sense because the song was really never used and this case is running in the same court. And, this is the strange (or is it silly?): Fuste awarded damages of $16,000 because the song Génesis was in the program's videotape.
f. During the trial itself, Fusté himself never expressed he had doubts that the performance took place. After all, how could he?
g. Fusté never sanctioned the plaintiff's lawyer for inventing the performance lie or showing up to trial without proof to show when the proof could have been so easy to obtain in deposition, newspaper articles, and elsewhere. And of course, the videotape. All Fusté had to do was look at the videotape he himself refered to as to make a damage award for the use of the song Genesis. Of course, if the videotape did not contain the performance of the song, he should have jailed someone for perjury, no?
h. LAMCO nor anyone else denied the performance or the infringement.
But, said Judge José A. Fusté in his opinion (pdf):"LAMCO’s retroactive license for performances by ACEMLA to BPPR in 1998 identified six songs, including Génesis, and covered the years 1993 through 1998, for a total amount of $260,432."Ok, so of there is thorough and non controversial evidence that the performance actually occurred, why did Fusté not want plaintiffs to be awarded at least the $43,405 plus interests, paid by BPPR to ACEMLA-LAMCO plus whatever was paid to Peemusic for their also bogus license when they issued their license to BPPR in 1993?
"Plaintiffs have not persuasively shown that BPPR actually performed Génesis or any of GVL’s songs during the time period.."
"Without BPPR’s direct use of the song, the license here is evidence of only probable, not actual, infringement, of GVL’s songs. Without more, we cannot grant Plaintiffs a portion of the above mentioned profits."
Was it because he also prevented additional damages from Peermusic for the same infringement?
Why did Judge Fusté not award any damages against LAMCO? , worth about $60,000 (present worth) even though the basic facts were recognized in his opinion, that LAMCO infringed by licensing BPPR and collecting an illegal $43,405 in royalties?
Why did Fusté not asked LAMCO how was it that the collected $43,405 and if the performance actually occurred?
Why did Judge Fusté not award any damages against Peermusic for the infringing performance they illegally licensed to Banco Popular in 1993?
Why did Fusté award damages of $16,000 for the videotape that included the performance of the song and then say that the performance was not proven? Why was Fusté not consistent and say there was no proof the song was in the videotape to so as to also save LAMCO (and Peermusic) some additional damage money?
Why did not Fusté question why Banco Popular paid good money to two music publishers, once in 1993 and then again in1999, for non existent performance and videotape royalties?
Why was the huge and blatant Lucecita performance oversight not overturned on appeal?
Why did Fusté only award $21,000 in damages to the Venegas family when in fact the trial expenses to these are over $250,000?
Why did Fusté also overlook another obvious infringement, a $1,000,000 one?
Who was actually Fusté really protecting in this absurd decision making process? Over 200 errors!
Any explanations? Yes there are explanations, but such explanations cannot be given at present. Please stay tuned.
You are reading judicial history in the making.