Cuban filmmaker sues Miami firm in IPR copyright dispute.The Castro regime is well-known for going out of its way, even filing lawsuits, to protect trademarks for its various cherished Cuban brands everything from Havana Club rum to Cohiba cigars.
However, protecting Cuban-made films against international piracy and copyright infringement hasn't been much of a priority.
Visit popular video-sharing site YouTube and you can download for free any number of critically acclaimed Cuban films such as "Dioses Rotos", "El Cuerno de la Abundancia", "Guantanamera", "Afinidades" and "Entre Dos Aguas." Even "HabanaStation" which recently premiered at the Havana Film Festival New York (HFFNY) is yours for the taking.
"Usually, when it's a Cuba-only production, they find there is no way to establish a lawsuit," said Havana filmmaker Alejandro Brugues during his recent appearance at HFFNY.
He also said that if a Cuban film is co-produced with a foreign film company and/or international financiers, it's generally the non-Cuban partner who may want to pursue a copyright protection lawsuit against the offending party.
"Usually, it is up to the [non-Cuban] co-producer to take legal action," he said. "That is very complex."
Apparently, at least one Cuban filmmaker wants to change this situation and improve copyright protection of his country's productions in the United States.
Several months ago, Jorge Herrera, who directed the films "90 Millas" and "Entre Dos Aguas", filed a lawsuit with the Southern District Court of Florida. His petition against two Miami firms, Mega Media Holdings Inc. and DVD distributor Marakka 2000 Inc., and other co-defendants, alleges copyright infringement of one of his other Cuba-made productions, "Club Habana."
SUIT: MEGA MEDIA INFRINGED 'BUT DIDN'T CARE'
Mega Media controls the Spanish-language cable network Mega TV, a subsidiary of Spanish Broadcasting System. The Hispanic media conglomerate, best known for its network of radio stations throughout the U.S. mainland and Puerto Rico, is owned by Cuban-American mogul Raul Alarcon.
Herrera's Miami Beach-based IPR attorney, Amaury Cruz, sent CubaNews a copy of his client's complaint against Mega Media.
The suit claims that Mega TV aired "Club Habana" on its network in December 2011, two months before its scheduled February 2012 theatrical release in Miami.
The complaint also says Mega Media executives asserted they got a copy of the film from Marakka, and that it is bound by an indemnity and hold harmless provision with respect to any violation of IPR.
With Herrera believing that Mega Media willfully infringed upon his copyright, he's still suing the cable TV network. In addition, Herrera says Marakka and other co-defendants made pirated copies of his "Club Habana" film and later distributed them in Miami and other Florida markets, and also sold DVDs online.
Herrera further alleges that, as of January 2012, digital copies of that film ended up on the TVCubana.tv, Cinematicacubana.com and Peliculascubanas.net websites. He even asserts that pirated copies of the film found their way onto the streets of Havana, bearing Mega's trademark.
"I have evidence the defendants knew they were infringing, but didn't care," said Cruz. "Mega and the rest were warned beforehand and went forward anyway. Fernandez [another defendant in the case] did raise issues relating to the embargo and suggested Herrera was a communist, but it was a smokescreen."
James Sammartaro of the Miami law firm Stroock Stroock & Lavan LLP, which is defending Mega Media, declined to discuss the case.
Herrera has standing in U.S. courts due to his unique circumstance. He's a German national and is using that legal status to assert copyright protection for his film, since Germany is a member of the Berne Convention, which provides for international enforcement of copyrighted material (including films) generated by citizens of signatory nations.
However, if Herrera were still a Cuban national while living in Germany or elsewhere, or had even been a Cuban exile living in the United States, questions remain as to whether he'd still be able to pursue a copyright infringement lawsuit on U.S. soil which could be relevant in the near future for other Cuban filmmakers.
Under an exception to the embargo against Cuba initiated in 1995 under President Clinton, Sect. 515.528, Cuban Assets Control Regulations (CACR), allows U.S. entities to assert the protection of their intellectual property in Cuba. It also provides for the U.S. government to protect intellectual property assets belonging to the Cuban government.
That exception technically allows Cuban government-run filmmaking entities to pursue copyright protections here, but no U.S. litigation has tested this. Nor will it apply in the Herrera case, since he is an individual.
"There is very little if any relevant jurisprudence and practically no scholarly comments [in this area]," admits Cruz.
CUBA URGED TO FIGHT FOR IPR IN U.S. COURTS
For this reason, IPR lawyer Marvin Feldman of the New York-based law firm Lacken-bach Siegel LLP strongly urges Cuban film-makers to protect their commercial interests internationally, including the U.S. market.
"One thing they can do is assign U.S. copyright to a member of the European Union," Feldman told CubaNews. "The EU entity could then, without any question, secure U.S. copyright."
Even though all 27 EU member countries and Cuba are signatories to the Berne Convention, Feldman makes this recommendation for Cuban-made films since there's a much stronger likelihood of legal precedent for copyright protection for those from EU countries than from Cuba.
Feldman also believes that the embargo may have been a factor in the blatant violations of not only Herrera's copyright, but of other Cuban filmmakers by various parties in the United States.
"Clearly the defendants [in the Herrera case] had to form a conclusion that they can get away with it," he said. "Maybe their defense is that [Cuban] copyrights are not enforceable in the U.S. We will learn more as this case goes along."
Details: Amaury Cruz, The Lexarian Firm, 1560 Lenox Ave., #207, Miami Beach, FL 33139. Tel: (305) 604-2051. Email: firstname.lastname@example.org.