Lawyers working on a legal battle that could pretty much impact on the entire reggaeton genre are currently involved in an angry back and forth, each accusing the other of bad conduct as the ‘dembow riddim’ copyright case continues to go through the motions.
In a court filing last week, attorneys working for Steely & Clevie - the production duo that created the track that led to the ‘dembow riddim’ - said that a recent motion for sanctions filed by the other side was an “attempt to divert attention from the merits of the case to focus on frivolities like music-production terminology and counsel disputes”. As a result that motion should be rejected.
The “substance and structure” of the motion for sanctions “gives away the plot”, the attorneys added. In it, defence lawyers “spend only a few pages addressing the actual arguments and the vast majority of the brief engaging in ad hominem attacks and offering a tortured and inaccurate history of this litigation”.
Wycliffe ‘Steely’ Johnson and Cleveland ‘Clevie’ Browne created the track ‘Fish Market’ in 1989, and then used the distinctive drum pattern from it in the Shaba Ranks track ‘Dem Bow’ the following year. The drum pattern was then also used in Dennis Halliburton track ‘Pounder Riddim’, a remix of which was then sampled or interpolated by numerous reggaeton artists. And so the ‘dembow riddim’ was born.
So many reggaeton artists have used the drum beat that - when Browne and Johnson’s estate went legal in 2021 - there were around 160 defendants listed in their litigation. That included all three majors, Kobalt, BMG, Peermusic, Concord and Rimas Music, and artists like Bad Bunny, J Balvin and Daddy Yankee.
Brown and the Johnson estate argue that widespread use of the drum beat without permission constitutes copyright infringement. Defendants have argued that the drum beat is not original enough to enjoy copyright projection, or that it has become a ‘scène à faire’ - ie obligatory element - in the reggaeton genre, and as such should not be protected by copyright, however original it may or may not be.
Despite those arguments, the judge hearing the case declined to dismiss the lawsuit last year. Since then various expert testimonies have been in the spotlight, while the law firm Pryor Cashman - which represents more than 100 of the 160 defendants in the case - has been seeking to counter the copyright arguments presented by Doniger Burroughs, the law firm representing Steely & Clevie.
In its motion for sanctions against Doniger Burroughs, Pryor Cashman accused its rival law firm of creating “out of thin air” a dozen quotes from one of their experts in the case, Lawrence Ferrara, in a previous document.
Doniger Burroughs, which wants Ferrara excluded from the litigation, has admitted that error, but says in its new filing that, by admitting its mistake, there are no grounds for sanctions. “Candidly acknowledging and timely withdrawing a mistake” does not warrant sanctions from the court, it insists.
According to Law360, Pryor Cashman has also complained that attorneys at Doniger Burroughs have abandoned a “knowingly baseless theory” that they previously presented regarding the copyright status of ‘Fish Market’, principally that seven elements of the song are “individually original and protectable”.
Pryor Cashman claims that Doniger Burroughs suddenly dropped this theory after its team had spent “significant time and money” addressing and debunking it.
Doniger Burroughs insists that’s not true, stating that its core claim has not changed since 2021, which is basically that the ‘Dembow Riddim’ is “an original work protected under the US Copyright Act and defendants committed copyright infringement” by exploiting it without authorisation.
The complaints made by Pryor Cashman in its motion for sanctions are all distraction tactics as far as the attorneys at Doniger Burroughs are concerned. And they want the judge to ignore all that complaining and instead focus back on the core question posed in this legal battle - do thousands of reggaeton releases infringe the copyright in Steely & Clevie’s 1989 drum beat?