Earlier this month a US judge ruled that only a jury can decide if the ‘dembow riddim’ that is used in so many reggaeton tracks is protected by copyright.
But Bad Bunny wants the judge to reconsider that ruling, arguing that there’s a “fundamental defect” in the lawsuit filed by Steely & Clevie, the artists who reckon they own the copyright in the dembow beat. And Judge André Birotte Jr failed to factor that into his ruling.
If the dembow riddim is an “original and protectable work” under US copyright law, numerous reggaeton artists - including Bad Bunny - have infringed the copyright in the beat by using it without permission.
Musicologists can’t agree on whether or not the beat is sufficiently original to be protected by copyright, making this legal battle a “classic dispute of fact” which, Judge Birotte says, can only be resolved by a jury. Which means he himself can’t make a ruling by summary judgement.
But, says Bad Bunny and his label Rimas in a new legal filing, Birotte failed to address a key question that should precede the dispute over the copyright status of the dembow riddim. Which is, basically, where is the riddim to begin with to be protected by copyright?
The beat originates in Steely & Clevie’s 1989 instrumental ‘Fish Market’ and two derivative works of that track, ‘Dem Bow’ and a remix of ‘Pounder Riddim’. However, insists the new legal filing, none of those tracks actually contain all the elements that make up the beat that has proven so influential in the reggaeton genre.
Which means, the filing argues, the lawyers representing Cleveland ‘Clevie’ Browne and the estate of Wycliffe ‘Steely’ Johnson have constructed a ‘Frankenstein’ work from three different songs in order to claim there is copyright to be infringed. But because the beat can’t be found in any of the three original tracks, there is no distinct work or copyright belonging to Browne and the Johnson estate.
Needless to say, the Steely & Clevie lawyers do not agree. One of them, Stephen Doniger, told Billboard that it’s “disappointing that defendants continue to push their false narrative” about the dembow riddim, adding that Bad Bunny and his label “offer nothing new and no basis for reconsideration” in their new legal filing and “we hope the court will quickly deny this motion”.
Bad Bunny’s team expand on their argument that the Steely & Clevie team are seeking copyright protection for a ‘Frankenstein’ work in the new legal filing. They say there are seven elements that make up the dembow riddim, which are collectively found in ‘Fish Market’, ‘Dem Bow’ and the ‘Pounder Riddim’ remix, but not in any one of those tracks.
For example, the legal filing goes on, “the tambourine element appears in ‘Fish Market’ but not ‘Pounder’”, while the version of ‘Fish Market’ filed with the US Copyright Office “does not contain a timbales roll at the end of every other bar”. And, they reckon, both the tambourine and the timbales are required components for the distinct work that Steely & Clevie are looking to protect.
So while the experts may not agree on whether the dembow riddim is sufficiently original to be protected by copyright, that dispute is irrelevant if the beat does not exist in any of the tracks that Steeley & Clevie have an interest in. “No expert can testify a non-existent work into existence”, the legal filing adds.
Bad Bunny’s team concede that this alleged fundamental defect was identified in court at the outset of the case, which therefore backs up Doniger’s claim that there are no new arguments in the new legal filing. But, said filing insists, Judge Birotte’s recent ruling “does not address or even consider this issue”.
“Thus, the court issued its ruling without addressing the logically antecedent and foundational question, the answer to which would determine whether the court needed to reach the further question of whether” Steely & Clevie’s beat “is original and protectable or commonplace and unprotectable”.
If Birotte doesn’t feel in the mood to reconsider his recent ruling, Team Bad Bunny have also asked for permission to take this matter to the Ninth Circuit Appeals Court.