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The bootlegging of Cuban music and videos is a widespread problem, one perpetrated by entrepreneurs who have adopted a unique posture toward the Cuban cultural patrimony. "This music is in the public domain in the United States," insists Waldo Fernandez, the owner of Marakka 2000, a Miami company that sells videos of Cuban bands and films, as well as reissues of classic Cuban CDs.
Fernandez, who has been distributing the videos since 1985, says he gets them from a variety of sources -- sometimes a company that has the rights in Mexico, sometimes from acquaintances who bring them from Cuba. Sometimes he just copies material taped from Cuban TV. He says he's been in court several times for alleged copyright infringement, but the cases have always been thrown out. "It's impossible for Cuba to register anything here," Fernandez claims.
Not according to Beth Weaver, spokeswoman for the Treasury Department's Office of Foreign Assets Control. She says Cuban music falls under the OFAC's general license, which allows Cuban nationals to hold copyrights on material in the United States and to receive payment to be made to them. According to Weaver, Cuban musicians and producers can also collect royalties on sales of their product in the States.
"I'm not a pirate," maintains Fernandez, whose current catalogue includes videos of Los Van Van, Manolin, NG La Banda, and Ahi-Nama's group Bamboleo. "I'll be happy to pay people what they want -- if they can prove the rights belong to them."
Fernandez's claims are nothing new to Caribe's Spanish president Federico Garcia. Sitting in Caribe's back yard with his two young Cuban daughters, he shrugs: "The embargo has created a situation in which [pirates] think no one will notice what they do."
Garcia says the culprits are not only small-timers such as Fernandez; he cites major-label compilations released in the United States that have included Caribe tracks without permission, and new versions of songs by Cuban composers recorded without permission from Caribe, or without even a writer's credit. He says that if he spent his money to enlist American lawyers to go after everyone who bootlegged his material, he'd be broke. But he's keeping a list of every violation.
"I can wait. I know that things are going to change soon," Garcia says with a smile. "And when they do, the money we get from the pirates will probably be more than what we've made in sales."
Before the revolution, Peermusic had a man in Havana. His presence has since become the stuff of legend. "A representative of Peer came here back in '58, '59," says Miguel Comas, director of the Asociacion Cubano de Derechos de Autores Musicales (Cuban Association of Composers' Rights). "He set up in the doorway of the Hotel Inglaterra and he bought the musicians a beer and paid them a dollar for their songs."
Peter Jaegerman, a vice president at the publishing company's New York headquarters, says he knows nothing of such an unsavory history. Jaegerman insists Peer never gave writers a one-time fee for their songs, that Cuban composers who signed with Peer were all given lucrative contracts granting them a percentage of any subsequent licensing agreements. Since 1961, he says, those monies have been kept in escrow accounts because of the embargo. According to Treasury Department spokeswoman Weaver, however, the Berman Amendment freed music publishing companies to pay Cuban composers in 1988.
Cesar Portillo de la Luz is waiting for his money. "Up until now that publishing company has not communicated with me," says 75-year-old Portillo de la Luz, one of Cuba's most respected composers. His songs have been recorded by Placido Domingo, Nat King Cole, Luis Miguel, and Caetano Veloso, among others. "My songs are not in the public domain," he adds. "I am alive."
According to Jaegerman, Peer has been stymied by the cloudy language of Treasury Department regulations, though these were further clarified in 1994. He says Peer has paid royalties to the heirs of late Cuban composers who live in the States, and is now working to pay songwriters and their families on the island. "An aspect of the embargo that people really don't appreciate is the lack of communication between the United States and Cuba," Jaegerman says. "It's like people just fall off the face of the Earth.... Everyone in Cuba moved and left no forwarding address."
Portillo de la Luz scoffs at that excuse. "If they really wanted, they could have located me through the Cuban Interests Section in Washington," he says. "The publisher is hiding behind this issue in order to justify an attitude they've had from way back. The minute the affiliate left Cuba, they broke every connection with us. They've used a political situation as a pretext to not fulfill the payment, at the same time that they've been collecting from our songs all these years."
Jaegerman says he is eager to talk to Portillo de la Luz. In fact, he says, Peer has already begun to send envoys to Cuba, acknowledging they have some amends to make if they want to take advantage of the current situation. "The best thing is that we can sign artists again from Cuba," Jaegerman says. "We want to get new talent. The Berman Amendment makes clear that you can get back in the creative game."