It was Lucía Sánchez, daughter of the brilliant composer, a lawyer specialising in copyright – and one of the plaintiffs – who discovered the desafuero when she took over her father’s administrative duties before he died.
The magistrate Jorge Montull Urquijo, head of Madrid Commercial Court 3, has ruled in favour of the widow and five children of Francisco Sánchez Gómez – Paco de Lucía – in his ruling 104/2023 of 3 March, recognising that the deceased is the author of 38 musical works, including “Entre dos aguas”.
It also ordered the Sociedad General de Autores de España (SGAE) to remove José Torregrosa Alcaraz – who died in 2005 —, composer and arranger, from its records in which he appears as “official co-author” of these works.
And it sentences his heirs, María Luisa Olcina Sánchez – his widow – and his two daughters, Dolores Torregrosa Olcina and Maribel Torregrosa Olcina, to reimburse all amounts received as exploitation of the works composed by Paco de Lucía since they were registered in the early 1970s – fifty years ago – to which the corresponding legal interest must be applied.
To this, the magistrate also adds 10,000 euros in compensation for moral damages to Paco de Lucía’s widow, Gabriela Canseco -his second wife-, the three children from his first marriage, Casilda, Lucía and Francisco Sánchez Varela, and two underage siblings of the second.
The lawsuit against the three heirs of the maestro Torregrosa was initially brought by Agustín Azparren, of the firm Ontier, and by Marisa Castelo, of the law firm Legalarte, who had to leave when she was appointed president of the Instituto de Autor. She was replaced by Lucía Sánchez, of Menta Abogados, specialising in authors’ rights, and one of the three eldest children of Paco de Lucía, who died at the age of 66 in 2014 in Mexico, where he was living at the time.
AN UNPRECEDENTED RULING
“It is an unprecedented ruling. Until now, all the ‘whistler’ cases were settled within the Sociedad General de Autores de España [SGAE]. This is the first one to reach the courts”, Azparren explains.
“Before he died, Paco de Lucía told his family that he was concerned that he would not go down in history as the exclusive author of ‘Entre dos aguas’, the piece of music that changed the history of flamenco. That has been the driving force behind our cause in a process that, to date, since the lawsuit was filed in court, has lasted five years”, the lawyer stresses.
The brilliant creator, Paco de Lucía, like many of his time, did not know how to read music and, therefore, was incapable of translating his compositions into a musical score that could be recorded.
The “whistler” Torregrosa, who in the sixties and seventies was the music producer for the Philips record company, where Paco de Lucía recorded his first records, took advantage of this. They were called “silbadores” because of the saying “you whistle and I’ll do the score”.
“Mr. Torregrosa took advantage of this circumstance to appear in the recordings of around forty of Paco de Lucía’s musical works as co-author of them, in particular in the world-famous composition of ‘Entre dos aguas’ in which he appears with a 50 % share”, the sentence states.
It was something that the lawyer Lucía Sánchez discovered in 2012 and reported to her father. Paco de Lucía was very surprised by this circumstance and wanted it to be settled, so a conciliation with Torregrosa’s heirs was initiated, but to no avail.
Faustino Núñez Núñez, professor of Flamencology and Master in Musicology at the University of Vienna, as well as a guitarist with extensive professional experience, intervened in the trial and gave an expert report on the 36 works referred to in the lawsuit, declaring the authorship of all of them to be by Paco de Lucía.
“In the Flamenco Encyclopaedia, Torregrosa is not mentioned, when even the last “palmero” of a tablao in Malaga is mentioned”, he declared before the magistrate Montull Urquijo to underline the lack of importance in this field of the music of the “silbador”.
THE PERCENTAGES WERE MODIFIED WITHOUT PACO DE LUCÍA’S KNOWLEDGE
Another expert, this one a calligrapher, José Carlos Moreno Linares, analysed the musical records of the works in dispute, comparing the undisputed signatures of Paco de Lucía with those that appeared in the records of the SGAE.
“The expert’s report shows that, in the registers of the works in which Paco de Lucía’s signature appears, the percentage was subsequently altered, being set at 50% for each of the registrants. And as can be seen directly from them, and as indicated above, the original percentage was 80% Paco de Lucía and 20% José Torregrosa. In the rest of the registers in which 50% of both appear, it is not accredited that Paco de Lucía’s signature was authentic”, says the sentence.
The direct conclusion “is that it is not accredited that the percentages of ownership that appear in the SGAE records of the disputed works had the agreement of Paco de Lucía”, adds the magistrate.
On the contrary, what has been proven is that these percentages were modified without the knowledge of the creator.
“The purpose of this trial is to examine whether Mr. Torregrosa did indeed intervene in the creative process of the works in dispute”, the magistrate states.
And he concludes that “It is not proven, nor is there any evidence, beyond the entries in the SGAE repertoire, that Mr. Torregrosa participated in the creative process of the works that are the object of the lawsuit, at least as co-author, that is, having the condition referred to in article 5 of the Reformed Text of the Intellectual Property Law (TRLPI), even jointly with Paco de Lucía”.
The musical works in dispute that the magistrate has recognised as being one hundred percent Paco de Lucía’s works are: Gitanos Trianeros, El Tajo, Jerezana, Llanto A Cádiz, Punta Umbría, Recuerdo a Patiño, Viva la Union, En la Caleta, Llora la Seguiriya, Abril en Sevilla, Al Conquero, Que viene el coco, El Vito, Fuente Nueva, Plazuela, Rumba improvisada, Serranía de Málaga, Temas del Pueblo, Barrio de la Viña, Canastera, Cuando canta el gallo, De madrugá, Doblan campanas, Punta del Faro, Farolillo de Feria, Farruca de Lucía, Tientos del Mentidero, Percusión flamenca, La Guitarra Flamenca y Orquesta de Paco de Lucía, Fuente y caudal, Los pinares, Plaza de San Juan, Reflejo de Luna, Solera, Aires choqueros, Cepa andaluza and the legendary Entre dos aguas.
The sentence can be appealed to the Provincial Court of Madrid.