Decades of Latin music have a common drumbeat. It resides somewhere between the snare and the kick, in the syncopated hi-hat that gives reggaeton its distinct pulse. The majority of people who have danced to it are probably unable to identify it. However, a federal jury may now determine whether the claims of two Jamaican producers that they invented it are accurate and whether the genre as a whole owes them for it.
In a copyright infringement case involving Jamaican producer duo Steely and Clevie, specifically the estate of the late Wycliffe Johnson and his collaborator Cleveland Browne, U.S. District Judge André Birotte Jr. denied motions for summary judgment on July 2. They make the broad accusation that thousands of reggaeton songs, including hits by Pitbull, Drake, J Balvin, Daddy Yankee, Bad Bunny, Karol G, and Justin Bieber, illegally plagiarized a percussion arrangement from their 1989 instrumental song “Fish Market.”
The musicians made a strong case for an early dismissal, claiming that the drum pattern in “Fish Market” wasn’t unique enough to be covered by copyright in the first place. That argument failed because the judge was unable to rule at all, not because he decided against them. Qualified experts on both sides offered opinions that were directly at odds with one another. The judge stated that there is a legitimate dispute of material fact regarding whether the kick, snare, hi-hat, and tom elements in “Fish Market” qualify as copyrightable expression. This implies that a jury will make the final decision.
Sitting with the geography of this beat’s journey is worthwhile. Originally, “Fish Market” was a B-side to Gregory Peck’s “Poco Man Jam.” Dancehall musician Shabba Ranks was granted a license to use it in his 1990 hit song “Dem Bow,” which gave the rhythm its enduring name. A later version known as “Pounder Dub Mix II” is said to have entered the DNA of contemporary reggaeton. According to the plaintiffs, this was neither genre evolution nor homage. It was replicating.
The defense lawyers don’t believe it. The plaintiffs’ case, according to Bad Bunny’s attorney Ken Freundlich, is akin to a Frankenstein argument: fragments of various recordings pieced together to assert ownership of something that no single work actually contains. “We have thousands of songs in this case and we still don’t know what we’re comparing them to,” he said to the judge. That is not a trivial point. A comparison is necessary for copyright infringement. The comparison becomes extremely difficult if the purportedly protected work continues to change.
The plaintiffs’ attorney, Stephen Doniger, presented the counterargument: “Fish Market” is the only recording that has the same mix of bass, percussion, and drum elements. That is the originality argument, and it is a strong one. Individual drum sounds are common; that’s not the question. Whether this particular arrangement, in this particular combination, was novel is the question.
How a jury will consider that is still genuinely unknown. American courts have a convoluted history with music copyright cases. Years ago, the “Blurred Lines” ruling shook the industry. If it doesn’t work out well for the defense, this one might do much more harm to the commercial underpinnings of an entire genre rather than just one song.
As this case progresses, it appears that the music industry hasn’t fully considered the implications of a plaintiff’s verdict. Reggaeton is no longer a niche. It’s among the world’s most popular genres in terms of commerce. The dembow rhythm is the architecture, not a stylistic decision made by some producers. The legal apparatus is now fully operational, but the trial date has not yet been determined.
