Lawyers representing Steely and Clevie want to use the precedent set in a recent victory in the case involving YouTuber and Choreographer Kyle Hanagami who sued Epic Games, Inc. in 2022, the creator of the video game Fortnite, for copyright infringement of his choreographic work.
The submission was made to California Central District presiding judge Hon. André Birotte Jr. on November 3, 2023 highlighting key points from this case that directly address issues currently before the court in the Steely and Clevie sweeping lawsuit to claim rights to 1800 reggaeton songs, specifically related to the defendants’ Motions to Dismiss, which were argued on October 20, 2023.
The document obtained by WMV was filed by Scott Alan Burroughs, Esq., from the law firm DONIGER / BURROUGHS, who represent the plaintiffs Cleveland Constantine Browne, Anika Johnson (as the personal representative of the Estate of Wycliffe Johnson, deceased), and Steely & Clevie Productions Ltd.
It states that the Hanagami case establishes important precedents, such as the significance of copied portions in copyright infringement cases, irrespective of their length. It emphasizes that if a copied portion is deemed significant, a defendant cannot escape liability merely because it is short. The Hanagami case also addresses the ‘protectability’ of relatively brief sequences, stating that even a brief sequence can give rise to infringement claims if it has qualitative significance to the plaintiff’s overall work.
In their case, Steely & Clevie legal representative contends that their Fish Market Riddim, a foundational dancehall rhythm extensively utilized in Reggaetón, should be treated similarly to the choreography in the ‘Fortnite’ lawsuit. Drawing parallels, the attorney argues that the Hanagami v. Epic Games decision supports their position.
In the Hanagami Epic Games case it is alleged that by incorporating an in-game dance move titled “It’s Complicated,” based on a video featuring Hanagami dancing to Charlie Puth’s “How Long.” Initially dismissed by a federal judge who deemed choreography as uncopyrightable individual poses, the decision was overturned on November 1 according to Reuters by the 9th Circuit U.S. Court of Appeals.
“Reducing choreography to ‘poses’ would be akin to reducing music to just ‘notes,'” Circuit Judge Richard Paez wrote.
The appeals court unanimously asserted that choreography, like music, cannot be reduced to individual elements. It emphasized that the significance of a copied portion in a work could hold the defendant liable, even if the portion is brief.
Furthermore, the appeals court ruled that Hanagami is not obligated to provide an exhaustive list of factual allegations concerning the elements of his choreography during the dismissal stage of the lawsuit.
Steely & Clevie’s lawyers are fighting for the judge not to dismiss the case and recently cited Spotify’s “Loud Podcast”where several reggaeton acts admitted to using the Dem Bow riddim to make their songs.
Videos showing reggaeton producer Tainy who works with artist like Bad Bunny, J Balvin, Ozuna and Anuel saying, “People call it like Dem Bow – because it came as a reference to a song called like that how many years ago (Dem Bow Shabba sample)” was president evidence in court to establish a clear intention to infringe by the reggaeton artists and producers.
“When you listen to it you know you’re listening to a reggaeton track – that’s one of the most common percussion samples or elements that make a reggaeton track,” Tainy said.
