The judge overseeing the big ‘dembow riddim’ copyright case in the US has declined to rule in either side’s favour regarding a crucial question on which this whole dispute hangs: is the widely sampled ‘dembow beat’ an “original and protectable work” under US copyright law?
If it is, then it’s possible that tracks by Bad Bunny, Karol G and more than a 100 other artists - and maybe even a majority of releases within the reggaeton genre - have all infringed the copyright of Steely & Clevie, who produced the 1989 dancehall track ‘Fish Market’ from which the dembow riddim originates.
Lawyers representing Cleveland ‘Clevie’ Browne and the estate of Wycliffe ‘Steely’ Johnson argue that the beat is clearly protected by copyright, while lawyers working for the 150+ artists accused of copyright infringement are equally adamant that it is not. Both sides wanted Judge André Birotte Jr to rule in their favour by summary judgement, but the judge decided only a jury can answer this question.
Responding to that decision, attorney Stephen Doniger, representing the Steely & Clevie side, told Billboard, “We are pleased that the court largely rejected the defendants’ arguments but disappointed that it did not grant our client’s affirmative summary judgment motion”.
The judge could have granted his clients a summary judgement, Doniger reckons, because “it is hard to imagine how any jury could find the dembow riddim to be anything other than an original and protectable work given the undisputed evidence that it is made up of seven discrete elements combined in a way that no one has found in any work predating ‘Fish Market’”.
However, given that confidence, Doniger is pleased the copyright case that could impact on a whole genre is able to continue, because “we have little doubt that a jury will see through the defendants’ arguments and we look forward to the next steps in this case”.
Although the dembow riddim was first created for ‘Fish Market’ in 1989, its genre defining status came a little later. Steely & Clevie subsequently used the distinctive drum pattern from their earlier work in the Shaba Ranks track ‘Dem Bow’. 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.
Browne and Johnson’s estate first went legal over the unapproved use of their beat in countless tracks in 2021. Among the music companies targeted are all three majors - Universal Music, Sony Music and Warner Music - plus Kobalt, BMG, Peermusic, Concord and Bad Bunny’s label Rimas Music.
As with many sample disputes, a key question is whether the dembow riddim is original enough to enjoy copyright protection. And even if it is, is there a case for saying that the beat 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?
Judge Birotte decided that, with so many defendants involved in this case, the legal battle should be fought out in phases, beginning with the crucial question of whether or not the beat is an “original and protectable work”. With that question posed, each side predictably presented a team of experts who conveniently shared their view on the copyright status of the dembow riddim.
With the expert reports submitted, both sides then set out arguments for why the expert testimonies written by the other team should be ignored and excluded from the case. Birotte went through all those arguments in his ruling this week, deciding that most of the expert testimonies submitted were sound and should be considered.
Which means we have two buckets of expert testimonies, one bucket saying the dembow riddim is an “original and protectable work” and the other that it is not. Or, in Birotte’s words, one team of experts “advancing one account of the relevant musical features and their significance” and another team “offering a fundamentally different interpretation of those same features”.
Which means this case is a “classic dispute of fact” rather than a dispute over what the law says, and where you have a credible dispute of fact, in the US, juries rather than judges should be deciding which side is correct.
Birotte writes, “when the record presents a ‘battle of the experts’, summary judgment is generally inappropriate because resolving the dispute would require the court to weigh competing evidence and make credibility determinations”. Citing legal precedent, he adds, “this case boils down to a battle of the experts and such a battle must be left for the jury’s resolution”.
And so the copyright status of the dembow riddim - and with it the future of the entire reggaeton genre - will now be decided by a jury.