BARRIO (CourtHouse News) – Dozens of reggaeton stars, including Bad Bunny and J Balvin, asked a federal judge to cut short a massive copyright infringement lawsuit that accuses them of illegally copying or sampling an instrumental percussion track created by two Jamaican producers in 1989.
U.S. District Judge André Birotte Jr. didn’t issue a ruling at a hearing Friday in Los Angeles on the artists’ and record labels’ request to dismiss the case. The judge, a self-described music fan and a former college DJ, said it would take him more than a few weeks to review the filings and make up his mind.
The case before Birotte consolidates a numerous individual lawsuits against reggaeton artists brought by Cleveland Browne and the estate of the late Wycliffe Johnson, who under the name Steely & Clevie recorded “Fish Market.” The track was part of the Jamaican dancehall music scene, which inspired the development of Spanish-language reggaeton music in countries like Panama and Puerto Rico.
The very recognizable drum pattern of “Fish Market,” the plaintiffs say in their complaint, includes a programmed kick, snare, and hi-hat playing a one bar pattern, a tambourine playing through the entire bar, “a synthesized ‘tom’ playing on beats one and three, and timbales that play a roll at the end of every second bar.”
Steely & Clevie collaborated with dancehall artist Shaba Ranks in 1990 for the “Dem Bow” (meaning “they bow”) hit, which incorporated the “Fish Market” beat and gave it its “dembow riddim” monicker. The same year, “Dennis the Menace” Halliburton incorporated the pattern in his “Pounder Riddim” recording.
The subsequent “Pounder Dub Mix II” version of that track was sampled or copied “mathematically” by numerous reggaeton artists in recent years, according to the plaintiffs.
“There’s never been a case like this,” Scott Burroughs, an attorney for the Jamaican plaintiffs, said at the hearing. “Maybe we do need a reckoning because they are leaving my clients in the cold while making millions of dollars from their music.”
According to Burroughs, the reggaeton artists typically will obtain a license when they sample other artists’ work except in the case of the distinctive drum pattern that has become the foundation of the entire genre.
The reggaeton artists presented two main arguments that the lawsuit should be dismissed at this early stage. In the first place, they argued, that the lawsuit was unclear in terms of what works the plaintiffs actually own and on which they have standing to sue, and it was equally unclear what “protectable elements” in which compositions or recordings had been infringed.
Part of the problem, said Donald Zakarin, an attorney representing about 90 of the artists and record labels, was that different standards applied to copyright protection of a composition, such as the Jamaican producers claim for “Fish Market,” and for a recording such as “Pounder Dub Mix II.”
According Zakarin, whose clients include “Prince of Reggaeton” J Balvin, the plaintiffs didn’t register a copyright for “Pounder Dub Mix II” until March of this year after they found an heir to the producer of the track, and it was questionable whether that was a valid registration because the song belongs to “Dennis the Menace” Halliburton who isn’t part of the case.
The second argument brought up to dismiss the complaint at Friday’s hearing was that a rhythm isn’t entitled to protection under U.S. copyright law.
“Fish Market” is essentially a rhythm, without harmony or melody, and as such isn’t protectable, Kenneth Freundlich, an attorney for Bad Bunny said.
Since Bad Bunny hasn’t sampled any of the recorded works in question and since the “Fish Market” composition isn’t protectable under the law, the claims against him should be thrown out, Freundlich argued.
According to the plaintiffs, the “Fish Market” composition and the “dembow riddim” were totally original at the time, even though now pattern has become ubiquitous in reggaeton, and is entitled to copyright protection. The fact that it has been copied over and over again only goes to show that it’s an unique, Burroughs said.
Birotte, while not indicating which way he was leaning regarding dismissal, expressed concern about the stifling effect on creative activity if the foundational beat of an entire genre of music, which has entered the mainstream and been incorporated in Latin music and hip hop, is protectable.
“It’s a difficult question,” the judge said. “I see arguments on both sides.”