You might not know Carliz De La Cruz Hernández’s name, but you’ve heard her voice. Her throaty “Bad Bunny, baby” kicks off her ex-boyfriend’s 2016 single “Pa Ti” with Bryant Meyers, and it opens the Un Verano Sin Ti cut “Dos Mil 16.” But last month, news broke that she was suing Benito Antonio Martínez Ocasio for at least $40 million, alleging that he had used her voice recording without her consent and proper compensation. She also named Bad Bunny’s manager Noah Kamil Assad Byrne and the artist’s record label, Rimas Entertainment, in the suit.
De La Cruz and Martínez started dating in 2011. In January 2016, they were engaged. But by May of that year, they broke it off. They got together again for a brief period in 2017.
According to the Associated Press, De La Cruz’s lawsuit states that her “distinguishable voice” was used on both tracks without her consent or legal permission and has since been used in “promotions, worldwide concerts, television, radio, and social and musical platforms.” On Spotify alone, the two songs have been streamed more than half a billion times in total.
The lawsuit, which was filed in Puerto Rico, goes on to say that since the songs were released, “thousands of people have commented directly on Carliz’s social media networks, as well as every time she goes to a public place, about the ‘Bad Bunny, baby.’ This has caused, and currently causes, De La Cruz to feel worried, anguished, intimidated, overwhelmed, and anxious.” It claims that Bad Bunny and his team violated her “self-image” rights, or rights to publicity, among a few copyright claims.
As AP reports, the “Bad Bunny, baby” recording dates back to 2015: Benito asked De La Cruz if she would tape herself saying it, and she did. The lawsuit states that in May 2022, the same month Un Verano Sin Ti dropped but just prior to its release, Jomar D. Dávila Narváez—a representative for Bad Bunny, his manager, and his record label— reached out to De La Cruz, offering $2,000 to buy the recording of her voice. She declined and an agreement was never made, and she never gave consent for her voice recording to be used in this way.
At time of publication, Bad Bunny and his team have yet to respond to the suit.
Now, this isn’t the first time something like this has happened: Back in 2012, news broke that Ericka Lee, one of Drake’s ex-girlfriends, was suing him over the use of a voicemail sample on “Marvin’s Room.” She sought credit as a co-writer on the track—among other damages—for a recording of her asking, “Are you drunk right now?” She said Drake offered her 2% of royalties over text, but she chose to hire a lawyer. She also claimed that after the recording, Drake texted her, “U basically made that song,” and, “It’s shit without you.” The lawsuit settled a year later, the details of which were never publicized.
Both suits—and Bad Bunny’s in particular, since it is currently in litigation—bring up some interesting questions. How does something like this happen? If musicians know to clear samples of other media, like audio from television shows and disco records, why aren’t they doing the same with people’s voices?
Complex spoke to Michael Lawrence, a high-profile New York City entertainment lawyer at Lawrence Law known for his work with Norah Jones’s representatives, to get clarity on the Bad Bunny lawsuit, how it compares to other instances like Drake’s “Marvin’s Room” case, and what we can expect to happen next.
This interview has been edited and condensed for clarity.
Before we get into the specifics: How is she able to sue for this? What’s the legal term for a case like this?
She can sue. The bar for suing somebody in a case like this, or really any case, is not terribly high if you could make a plausible argument that makes sense on its face. On the pleadings, which are the court papers, anyone is free to file a lawsuit. In this particular case, I think the strongest case she would have is a right of publicity claim. In this case, she’s saying people recognize her voice from the recording. That’s what a right of publicity claim would seek to show.
Another reason why right of publicity is most likely in this scenario is that even though it’s her voice on the recording, it probably doesn’t rise to the level of something that is protected through copyright law. Copyright protects the expression of ideas. It doesn’t necessarily protect somebody’s voice. And so, if she was saying on the recording something that was really valuable—distinguishable—then it would rise to the level of being an expression that is protectable. But I don’t think something like “Bad Bunny, baby” would rise to the level of an expression of an original idea.
I’m curious: Is there any way Bad Bunny and his team could argue something to the effect of, “Hey, we don’t even know if this is her voice”?
In what I’ve read, it doesn’t seem like that’s being strongly disputed. But if there was a dispute, you could get an expert who studies voices to say, “Yes, this is this person’s voice,” or, “No, it’s not.” That’s typical in a case where that’s an area of dispute—that’s how the dispute would be adjudicated.
This isn’t like a phone call that was recorded without her permission. Does the location of where the voice sample was taken hold any legal weight? Because here, it sounds like both parties were aware of the recording. The issue is how it was used.
Right. There would be an issue in a situation where you’re recording someone without their knowledge. Most states operate under a one-party consent law, which means that only one person has to consent to the recording. It’s weird when you say one-party consent, but it’s like, the person making the recording has to consent to the recording and they have to be part of the conversation. They can’t just set up a tape somewhere and record people randomly. There are fewer states where both parties have to consent to the recording. [Ed. Note: Puerto Rico has two-party consent.]The case here is about how the recording was used.
Got it. The lawsuit mentions all the other ways that the sample has been used, like in concerts, TV, promo, radio, etc. Why would they mention those other uses? How would that affect the lawsuit?
I don’t know, specifically, about Puerto Rican law, but in some cases that I’ve read, the two states that have the right of publicity more than any others are California and New York. [Ed. Note: Puerto Rico has a strong right of publicity law.] In California, which is where a lot of these cases come out of, it’s because showing all those things is evidence that the defendant is using the plaintiff’s name, and their name and likeness, to their advantage. (A plaintiff is the person who is suing. So that’s an important element of a publicity claim.) It’s not that you use somebody’s voice but that you’re using it to actually profit in some way. That is probably why they are adding all those instances of promotion and advertisements and things of that nature.
The news stories reporting on the lawsuit state that the initial recording took place back in 2015, which predates Bad Bunny’s global superstardom. Could that have an effect on the case?
That’s an element of it, where it’s like, “Okay, there’s a recording, and I guess it was taken with consent at the time”—from what I’ve read—but there was not necessarily consent to place it in the song and have it be released.
So there is a recording and some level of that recording is being used without permission. Whether that recording was taken five years ago, seven or eight years ago, and the status of the individual’s fame has grown…on the margins that could have some impact in terms of profitability, but I could also see it working against [the plaintiff]. I could see a skilled lawyer making a good argument for either side. But I don’t necessarily think that when the recording was taken will make or break the case.
In May 2022, De La Cruz said that a representative for Bad Bunny reached out to her and offered to pay her $2,000, and she declined. Why would Bad Bunny’s team do that? And if she was your client, was that the right move?
They’re obviously offering her money because they know that they need to clear her voice. That is an outstanding liability. No one on his camp should feel comfortable releasing something where there’s a voice on there, some kind of a sample, that isn’t cleared. That’s just what you do. That’s legal 101 when you’re representing an artist. It would be negligent if they didn’t.
Would I advise Bad Bunny’s ex-girlfriend to reject the $2,000? Absolutely. $2,000 is a very small amount of money when you’re talking about an artist at that level, and it’s a massive song. The difference between $40 million and $2,000 is quite vast. I don’t think Bad Bunny’s ex is going to retire off of this license, by any means, but I think she could expect more than $2,000.
Using someone’s voice without their permission, I imagine that would feel quite violating. Are there grounds for including something about damages or harassment? I’m sure people know her as Benito’s ex-girlfriend.
In a right of publicity claim, there’s a few things you have to show. You have to show in the papers that the defendant used your identity, that the taking of your identity led to some sort of advantage—commercial advantage to the defendant—that there was lack of consent, and that there was some kind of resulting injury.
How it works in most legal jurisdictions is that the damages you’re seeking are, by and large, a measure of your injury, the injury that you sustained. I don’t know if there’s $40 million worth of damages. Depending on the jurisdiction, there might be punitive damages, which means it’s not just actual damages. It’s damages to deter this type of behavior. Some jurisdictions allow [that]. Some don’t. But essentially, a large part of any monetary lawsuit is going to equate to your damages. I’m sure that Bad Bunny’s ex is going to state in the complaint, or in the evidence that comes out, how the use of her voice on the recording affected her life, emotionally, through some sort of distress. Maybe Bad Bunny’s fans are vilifying her, or she can’t go anywhere without someone saying “Bad Bunny, baby” at her. For emails or messages that she gets, those are all items that a plaintiff would bring out to show that there was some resulting injury. That there are damages resulting from that injury should be taken into account in any ultimate liability that’s found.
I’d like to hear a little bit about how this case compares to a similar one: Back in 2012, Drake’s ex-girlfriend sued him over royalty complaints. It’s on “Marvin’s Room.” You can hear her ask, “Are you drunk right now?” In the lawsuit, she claimed that Drake texted her, “U Basically made that song,” and, “It’s shit without you.” Drake reportedly offered her a percentage of the publishing money, but she sought a credit as a co-writer of the song and other damages. Was she in the right? Is that valid?
With the Drake case, it does seem like the ex was more involved. In the Bad Bunny case, if we’re just saying “Bad Bunny, baby,” her voice on the recording is all she contributed. Then that doesn’t necessarily rise the level of protectable copyright, because it’s not really the embodiment of any kind of original idea. In the Drake instance, going by the details that you just recited, it seems like there was more contributing to the ideas behind the song, without saying definitively whether that is actually copyrightable. I think that is probably a reason why Drake felt more compelled to offer publishing income.
He offered publishing money; she wanted a credit as a co-writer. Why would you want to be credited as a co-writer? What would be the benefit of doing that if he’s already offering money in a different way?
I’d have to look at the exact language, but there’s always a difference in music when you’re talking about percentage: when you’re talking about percentage of income, as opposed to ownership of a copyright. Now, when Drake’s ex says that she wants credit as a co-writer, what she’s saying is that she wants a percentage of the copyright, that Drake owns, to the song as a songwriter.
So what that means is that basically any publishing that Drake would get from that song…there’s several different mechanisms of publishing. Let’s say you own your own publishing company, so all the publishing income comes to you. There’s no other party that co-owns your publishing. That means you’re getting money any time your song is played on the radio, played in restaurants, bars, any type of public performance. That is money that goes to the publisher, the copyright owner in the underlying composition. Most times, that is owned either by the artist’s publishing company or the artist’s publishing company and their co-publisher. So in this case, Drake’s ex saying she wants to be a co-writer, that would mean that she would essentially [have a] split in whatever percentage they decide all publishing money that flows through to Drake. So that is a little different than income. Income is just like as the money comes in, you split the percentage. But as a copyright owner, there’s more opportunities to make money.
As we later found out, in 2013, Drake settled the lawsuit after publicly releasing a statement saying that he “looked forward to being vindicated in court.” What does “settling” mean, in this instance? Was it the path of least resistance? Is that common?
In most of these cases, when you’re suing for millions and millions of dollars, you’re a sympathetic plaintiff. There’s very little incentive for somebody like Drake or Bad Bunny to go through the whole legal process and pay lawyers probably tens of thousands of dollars. It’s lengthy. You have to be in court all the time. There’s very little incentive, unless the claim is so frivolous that you just want to send a message. If you could settle for a fraction of the money that you would spend on lawyers taking a case all through the conclusion of the litigation, in most cases, artists in that position would choose to settle. Part of the settlement agreement usually includes language whereby both parties agree not to speak negatively about the other. Even the party that is paying. They’ll put something in the agreement that says they aren’t admitting to liability.
Do you think the Bad Bunny case will settle?
I do. Bad Bunny is somebody with resources, but I don’t see a benefit, even for her, to take it to trial because she would also have to spend money to go through the process. She should absolutely hold out for more than $2,000, but I don’t think she’s gonna get millions of dollars, or even a million dollars, out of this. At the end of the day, the most likely outcome is that both sides will come to an agreement and move on with their lives.
How does this differ from, say, Drake dropping a new song sampling Kim Kardashian from an episode of Keeping Up With the Kardashians. Is that legal? Or fair use?
That would definitely have to be cleared with the producers of Keeping Up With the Kardashians. It’s not fair use, because it’s not educational purposes or things of that nature. Even if he was trying to educate, it would be clear that he’s using the sample from a song he’s releasing and selling commercially. There really is no educational value in doing that. He’s not really doing anything terribly creative with the source material, which is the sample, so it’s not a transformative use of that material, so a fair use defense wouldn’t work. He would definitely have to get permission.
What is the difference between sampling for a media source versus, like, a voice recording? Is it all based on consent?
Yes. Another difference between sampling something like Keeping Up With the Kardashians and somebody’s voice is that Keeping Up With the Kardashians is definitely copyrightable work. It is a dramatic work that is copyrighted. If there was a court case on that, it would be copyright infringement. Whereas in the Bad Bunny situation with his ex, I think it would be a hard argument to make, that her voice memo alone is a copyrighted work. It’s not specifically an expression of an original idea. It’s fundamentally different.
In your experience, is this specific phenomenon—using somebody’s recorded voice on a track—is this a common legal matter in the music industry?
There are scenarios that are a lot more common. Essentially, we’re talking about samples, and there are other kinds of samples that are way more prevalent.
It happens, but I think most people in music, especially in, like, the pop world, are more concerned about tracks that they may get from producers or even tracks that they get sent by random people, how those recordings are cataloged or not accepted, or cleared if they do end up in artist’s recording. That’s much more prevalent than an artist’s ex sending them recordings of their voice.