The Great Combo is only for the purpose of collecting royalties, a federal judge concludes.
The big station wagon.
Photo: Luis Alberto Lopez
Federal Judge Jay García Gregory dismissed his former singer Carlos Juan “Charlie” Aponte Cruz’s lawsuit against Rafael Ithier and the Gran Combo on the grounds that under royalty definitions, the Gran Combo was a single entity and not a group of people.
“El Gran Combo, organized as a company, is a separate legal entity that employs the musicians that make up the band. As the group most prominently featured in the footage, the company is entitled to collect royalties as the lead actor and (Ithier) is the sole owner of this company,” the judge concluded last Friday.
The royalty dispute between Ithier, the owner of the orchestra El Gran Combo, and his former singer began in 2019 when the director of the combo filed a lawsuit alleging that the singer had demanded a royalty payment that did not suit him. Aponte Cruz responded to the same controversy with a counterclaim.
The lawsuit addresses the way royalties are paid to artists, particularly in the digital world. Federal law provides for a split of 50% to the owner of the recording, 45% to the “lead actor” and 5% to the “non-lead actor”. This payment is managed through the Sound Exchange system.
In this case, it is undisputed that the owner of the recording is the company called El Gran Combo, which in turn is owned by Ithier. What is in dispute is whether Aponte Cruz was entitled to payment as a “lead performer” in some 200 songs by the orchestra in which he was lead vocalist between 1973 and 2014, or whether he could claim at most 5% as a “non-lead performer”.
Federal judge Giselle López Soler recommended that García Gregory rule in Ithier’s favor in a report she issued.
“Both sides present good arguments for their respective positions, but the history of the statute undoubtedly supports Ithier’s interpretation,” the judge said, justifying that in press, promotional material, advertisements and live presentations only the name could be found at any time El Gran Combo and the Aponte Cruz name were not used separately.
“El Gran Combo has three singers, two sax players, two trumpeters, a trombonist, a bass player, a pianist, a timpanist, a conga player, a bongo player and a director… If Aponte’s (Cruz) arguments were correct, all members of the band would be ‘ main performers’ and none would be ‘non-main’ musicians or singers,” said López Soler.
“The Aponte (Cruz) name wasn’t on the album covers or otherwise promoted as the main attraction for people going to the concerts. There is no evidence that El Gran Combo and Aponte (Cruz) were promoted by name with equal meaning. The Court then finds that the El Gran Combo Orchestra (and consequently its owner) is the main artist on the El Gran Combo recordings and entitled to 45% of the royalties (under federal law),” the magistrate ruled.
Contrary to the judge’s recommendation, Aponte Cruz, through his attorney, José Alfredo Hernández Mayoral, argued that his reasoning had been misrepresented. He said he proposes that all members of the combo, not just him as the lead singer, have access to the 45% royalties earmarked for the “lead performer”.
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