A US judge this week declined to dismiss a lawsuit that pretty much accuses the entire reggaeton genre of copyright infringement. The litigation - which names Bad Bunny, J Balvin and Daddy Yankee among its defendants - claims that a distinctive drum pattern created by Jamaican producers Steely & Clevie in 1989 has been used without permission in at least 1800 reggaeton tracks.
Defence attorneys presented various arguments as to why the case should be dismissed forthwith, including that the drum pattern in question is not sufficiently original to enjoy copyright projection. Or that the drum pattern has basically 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.
However, judge André Birotte Jr said that none of those arguments justified dismissing the litigation at this point. The court could not, at this stage, “examine the history of the reggaeton and dancehall genres and dissect the genres’ features”, he said. And so it was not possible to determine whether the drum beat was protected under copyright law.
Understanding the core claim in this lawsuit involves going on a short musical journey. Cleveland Browne and the late Wycliffe Johnson - aka Steely & Clevie - recorded a track in 1989 called ‘Fish Market’, which is where the distinctive drum pattern originated. They then collaborated with Shaba Ranks on his track ‘Dem Bow’ in 1990, which uses the 'Fish Market' drum pattern, resulting in the percussion track being named the ‘dembow riddim’.
The drum pattern was then also used by Dennis Halliburton in his track ‘Pounder Riddim’. It's mainly the ‘Pounder Dub Mix II’ version of that track that was then sampled or interpolated - “copied mathematically” according to the legal claim - by numerous reggaeton artists.
That slightly convoluted journey in itself doesn’t impact on the legal claim now being made by Brown and the Johnson estate, Judge Birotte Jr also ruled this week.
According to Courthouse News, he said that it “does not follow” that any defendant necessarily infringed the copyright in ‘Fish Market’ simply by copying ‘Dem Bow’, ‘Pounder Riddim’ or ‘Pounder Dub Mix II’. However, crucially, any copying of protected elements of ‘Fish Market’ would constitute infringement, regardless of whether they came from the original or one of the later tracks.
With all that in mind, the judge ruled that the case can proceed. If it does get properly to court, it will prompt some interesting copyright discussions, especially where artists have recreated the rhythm rather than directly sampling one of the earlier tracks. Given that there are around 100 defendants involved in the lawsuit - and potentially thousands of tracks using the rhythm - the outcome of the case could have a big impact on the entire reggaeton genre.