                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                               No. 11-11317              NOVEMBER 3, 2011
                           Non-Argument Calendar             JOHN LEY
                                                               CLERK
                         ________________________

                     D.C. Docket No. 1:10-cv-21418-KMM

RAFAEL VERGARA HERMOSILLA,

                                                            Plaintiff - Appellant,

                                    versus

THE COCA-COLA COMPANY,
a Delaware corporation,

                                                          Defendant - Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                             (November 3, 2011)

Before WILSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      Rafael Vergara Hermosilla appeals the summary judgment in favor of the

Coca-Cola Company and against his complaint of copyright infringement.
Vergara argued that Coca-Cola infringed on his copyright interest in his Spanish

adaptation of a song that Coca-Cola used in its advertising. The district court

ruled that Vergara had assigned his copyright interest in the adaptation to

Universal Music Latin America, which in turn had assigned its rights to the

adaptation to Coca-Cola. We affirm.

      As part of its advertising campaign for the 2010 FIFA World Cup soccer

tournament, Coca-Cola enlisted recording artist K’naan to create a new version of

his song “Wavin’ Flag.” Coca-Cola had the new version, the “Celebration Mix,”

sung in different languages by local artists and K’naan. To create the Celebration

Mix, Coca-Cola obtained rights from the owners of both the sound recording and

the musical composition of “Wavin’ Flag.” “The sound recording is the

aggregation of sounds captured in the recording while the song or tangible

medium of expression embodied in the recording is the musical composition.”

Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1289 n.18 (11th Cir. 2011).

      Coca-Cola contacted Jose Puig of Universal Music Latin America to

produce a Spanish version of the Celebration Mix. Puig sought advice from

Rafael Artero of Universal Music Publishing Group to select a songwriter. Artero

recommended that Puig employ Vergara, who had a contract with Universal

Group.

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      In November 2009, Puig and Artero called Vergara, who agreed to adapt the

song. According to Vergara, Artero said he would “carry out the normal

procedure as he would in any song in order to claim [Vergara’s] rights and register

the work.” Vergara knew that he would have to negotiate to obtain an interest in

the adaptation, but Vergara had “written hundreds of songs” and adapted one

song, and “no publishing house or author [had] ever denied [him] that right.” In

the past, “whenever Vergara [had] requested . . . rights there [had] always been a

dialogue with the other party and an agreement . . . reached without any problem.”

      In one evening, Vergara adapted the Celebration Mix into Spanish. Vergara

sent to Puig the lyrics and a “demo” musical recording that combined the lyrics

with the Celebration Mix. Coca-Cola approved Vergara’s adaptation, and Vergara

produced the recording of the Spanish Celebration Mix. Vergara delivered his

finished product to Puig in December 2009.

      Vergara sent the Universal Group an invoice for $6,000 for his production

work, and in January 2010, Universal Group began negotiating with the owners of

the musical composition to obtain an “adapter’s share” of the profits for Vergara.

In February 2010, iTunes Mexico began selling the Spanish Celebration Mix, but

iTunes did not credit Vergara for the Spanish lyrics and adaptation. When the

owners of the musical composition refused to give an adapter’s share to Vergara,

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he threatened to file a lawsuit to enforce his copyright interest in the adaptation.

      Puig and Vergara negotiated a settlement. On March 4, 2010, Vergara

emailed Puig and Artero “to repeat and reaffirm the terms [that Vergara and Puig

had] discussed.” Vergara stated that “a door [had] always [been] left open for

requesting from the original authors a percentage for the adaptation” and had he

known “that such a possibility did not exist,” he “would have never considered

making said adaptation.” Vergara stated that his “only demand” was that his

“name as an adapter . . . [was listed] every time the name of any composer of [the

Spanish Celebration Mix] [was] shown, . . . along with . . . production credits.”

Vergara told Puig to “consider [the adaptation] a Work for Hire with no economic

compensation” other than “one dollar.” On March 5, 2010, Puig emailed Vergara

that he could “count on the credits on the track” and that Puig was “resending

[Vergara] the contract.”

      On March 4, 2010, Universal Group assigned its copyright interests in the

adaptation to Coca-Cola. In the contract, Universal stated that it had acquired the

copyright from Vergara. The second clause of the contract provided that

“Universal . . . assign[ed] and transfer[red] [to Coca-Cola] title to the musical

work in Spanish of Wavin’ Flag, produced [by] Mr. Rafael Vergara, who in turn

assigned the copyrights to such musical arrangement to Universal.”

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      Puig mailed Vergara contracts that did not comply with Vergara’s requests

for credit for his work. On March 8, 2010, Vergara sent to Puig an email stating

that Vergara was “revok[ing]” his “proposal” of March 4, 2010. Vergara stated

that his “proposal was clear and it was just that, a proposal.” That same day, Puig

responded that he had failed to “review the contracts” and he would do so “right

away and make any necessary changes.”

      In May 2010, Vergara filed a complaint for injunctive relief and monetary

damages against Coca-Cola. The district court temporarily enjoined Coca-Cola

from advertising, selling, distributing, or disseminating the Spanish Celebration

Mix unless it attributed credit to Vergara as the adapter of the song. This Court

held that the district court did not abuse its discretion by issuing the preliminary

injunction. Hermosilla v. Coca-Cola Co., No. 10-12894 (11th Cir. Mar. 25, 2011).

      The district court later granted a summary judgment in favor of Coca-Cola.

The district court ruled that Vergara entered a contract to assign his copyright

interest in his adaptation to Universal. The district court found that “Vergara

agreed to sell his rights to the lyrics for a dollar so long as he receive[d] credit for

his contribution” and Puig accepted that condition of sale on behalf of Universal.

      The district court did not err by granting summary judgment in favor of

Coca-Cola because the record establishes without dispute that Vergara assigned

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his copyright interest to Universal. Under Florida law, parties enter a contract

when “there was a definite proposal by one party which was unconditionally

accepted by the other.” Webster Lumber Co. v. Lincoln, 115 So. 498, 504 (Fla.

1927). To make this determination, a reviewing court must “place itself in the

situation of the parties, and from a consideration of the surrounding circumstances,

the occasion, and apparent object of the parties, . . . determine the meaning and

intent of the language employed.” Underwood v. Underwood, 64 So. 2d 281, 288

(Fla. 1953) (internal quotation marks omitted). Vergara stated in his email on

March 4, 2009, that his “only demand” to assign his copyright interest was that he

receive credit as the adapter and producer. Puig “unconditionally accepted” that

condition in his email on March 5, 2009, in which he told Vergara to “count on the

credits on the track.” Puig’s acceptance on behalf of Universal was effective to

create a contract with Vergara because it “match[ed] the terms of [his] offer.”

Gillespie v. Bodkin, 902 So. 2d 849, 850 (Fla. Dist. Ct. App. 2005). The two

emails were “so connected with each other that they may be fairly said to

constitute . . . a complete contract.” Webster, 115 So. at 502.

      That Vergara and Universal intended to execute a “subsequent formal,

written contract, does not denote that they did not intend to be bound immediately

by their . . . written negotiations.” Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d

                                           6
429, 436 (11th Cir. 1995). Their emails do not contain any language from which

“conflicting legal inferences . . . could be drawn regarding the expressed intent of

the parties so as to alter the legal effect of the undisputed facts of [an] offer [by

Vergara], acceptance, and communication of that acceptance” by Puig. Citizens

Bank of Perry v. Harlie Lynch Constr. Co., 426 So. 2d 52, 54 (Fla. Dist. Ct. App.

1983). Vergara argues, for the first time, that Puig lacked authority to contract on

behalf of Universal Group, but we have “repeatedly held that an issue not raised in

the district court and raised for the first time in an appeal will not be considered by

this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004) (internal quotation marks omitted).

      We AFFIRM the summary judgment in favor of Coca-Cola.




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