Lawyers representing Bad Bunny, Daddy Yankee, and numerous reggaeton artists have argued that the “Dembow” rhythm found in the 1989 track “Fish Market” is not eligible for copyright protection. “What’s the end game?” is the question being asked by a federal judge who expressed worry on Friday that the far-reaching copyright infringement lawsuit against reggaeton sensation Bad Bunny, along with over a hundred other artists including Karol G, Pitbull, Anitta, Drake, and Daddy Yankee, might impede the creative freedom of an entire music genre.
Judge Andre Birotte Jr. chose not to issue an immediate ruling after a two-hour debate on a defense motion seeking the dismissal of the prominent case filed by lawyers representing the Jamaican duo Steely & Clevie.
This extensive case, consolidating more than 50 related lawsuits filed over the past two years, alleges that Steely & Clevie’s 1989 hit “Fish Market” introduced the distinctive “Dembow” rhythm that has become a hallmark of reggaeton music. The duo contends that “Fish Market” has been copied or sampled in approximately 1,800 songs by more than 160 defendants without proper credit or compensation.
Judge Birotte, who mentioned his previous experience as a party DJ in college, posed a crucial question in a Los Angeles courtroom on Friday: “What’s the end game? Does this lawsuit run the risk of arguably stifling creativity?… Look at the ripple effect this style has had on reggae, reggaeton, Latin music, Hip-Hop, you name it. Does this stifle the creativity of all of those genres?”
Scott Burroughs, the lead attorney for Cleveland “Clevie” Browne and the heirs of Wycliffe “Steely” Johnson’s estate, responded, suggesting that many of the defendants had no issue clearing samples from other artists included in their songs, so why should his clients be left without compensation?
“Maybe we do need a reckoning,” Scott Burroughs, responded.
Kenneth D. Freundlich, Bad Bunny’s lead attorney, denied the allegation that his client infringed on Steely & Clevie’s work in the more than three dozen Bad Bunny songs mentioned in the lawsuit. He argued that there were no direct samples of Steely & Clevie’s sound recordings in any of Bad Bunny’s works. The claims against Bad Bunny primarily revolve around the duo’s composition copyrights, which, Freundlich argued, do not protect elements like instrument choice, synthesized sounds, and timbre. He contended that without these elements, the only remaining aspect is the drum rhythm, which, he asserted, is not protectable.
Freundlich stated that he was not seeking to dismiss the entire case at this stage but suggested it should be significantly reduced by eliminating the infringement claims related to the written composition of “Fish Market” as opposed to its sound recording used in samples.
As the debate continued, lawyers from both sides clashed on whether a drum rhythm is eligible for copyright protection, the originality of “Fish Market,” and why Browne and the heirs to Johnson’s estate waited until 2020 to register “Fish Market.” A defense lawyer pointed out that the plaintiffs never sued Denis (Dennis The Menace) Halliburton over his 1990 song “Pounder Riddim,” which famously copied the drum pattern from “Fish Market” and was widely sampled, allegedly by several defendants.
Judge Birotte was also interested in whether “prior art,” meaning music that existed before the composition of “Fish Market,” should be considered in this case.
The attorneys on both sides presented their arguments, with the judge acknowledging the complexity of the case. It remains to be seen how the matter will proceed.
