Legal

Even if you don’t know the name or the backstory, you probably know the sound: Boom-ch-boom-chick, boom-ch-boom-chick, boom-ch-boom-chick. Listen to pretty much any reggaetón song, and you’ll hear that infectious percussion — dubbed the dembow rhythm — playing underneath. That single key element, a historian of the genre once wrote, “underpins the vast majority of reggaetón tracks as an almost required sonic signpost.”

There was nothing controversial about that fact until 2021, when lawyers for the Jamaican duo Steely & Clevie — Cleveland “Clevie” Browne and the estate of the late Wycliffe “Steely” Johnson — filed a copyright lawsuit over the origins of dembow. In it, they argued that the rhythm was ultimately derived from a single song, called “Fish Market,” that the pair wrote in 1989.

[embedded content]

When it was first filed, the lawsuit targeted only two tracks and a few artists. But the implication was clear: if their argument was valid, hundreds of artists across reggaetón — a genre that has risen from an underground fusion of rap, dancehall and reggae in the clubs of San Juan, Puerto, Rico, to the very apex of the music industry in the past decade — would also have infringed Steely & Clevie’s intellectual property.

Now, two years later, those stakes are no longer theoretical. The duo’s lawyers are suing more than 150 different artists, including Bad Bunny, Karol G, Pitbull, Drake, Daddy Yankee, Luis Fonsi and Justin Bieber, plus units of all three major music companies. They claim that over 1,800 reggaetón songs featuring iterations of the dembow rhythm were, at root, illegally copied from “Fish Market” — and that their clients deserve monetary compensation for them.

If that sounds both unusual and potentially disruptive to you, music law experts would agree.

“This case is jaw-dropping — the plaintiffs are suing over a hundred artists for over a thousand songs, 30 years after the release of their song,” says Jennifer Jenkins, a professor at Duke University School of Law who has written a history of musical borrowing and regulation. “If they win, this would confer a monopoly over an entire genre, something unprecedented in music copyright litigation.”

Musical pioneers

Legal claims aside, nobody really disputes that the genealogy of dembow leads back to Steely & Clevie, a legendary duo who are widely credited with playing an influential role in the evolution of Jamaican music. When Steely died in 2009, The New York Times said he had perhaps “participated in more sessions than anyone else in the history of reggae.”

According to most experts, the story goes like this: Aspects of Steely & Clevie’s “Fish Market” were incorporated into a 1990 song called “Dem Bow” by the artist Shabba Ranks, which itself was then re-used by producer Dennis “The Menace” Thompson in another 1990 song called “Dub Mix II.” It was this track that was then heavily sampled and interpolated in the early days of reggaetón, providing an essential rhythmic element to the nascent genre. According to an article by Wayne Marshall, a historian of Caribbean music and a professor at Berklee College of Music, that portion from “Dub Mix II” has since “provided the basis for hundreds if not thousands of other tracks.”

Over the decades that followed, reggaetón blossomed into a global sensation. With roots in the Panamanian “reggae en espanol” movement and then evolving with Puerto Rican trailblazers like Ivy Queen and DJ Nelson, reggaetón exploded onto the world stage with Daddy Yankee’s 2004 breakout single, “Gasolina,” which spent 20 weeks on the Hot 100. The genre then rose to new heights in 2017 with Luis Fonsi’s mega-hit “Despacito,” which topped the Hot 100 for a record-tying 16 weeks. And last year, Bad Bunny’s Un Verano Sin Ti became the first Latin album to finish as the No. 1 Billboard 200 album of the year after ruling the chart for 13 nonconsecutive weeks. According to Billboard Boxscore, he also grossed a record-setting $435 million across two tours — El Último Tour del Mundo and World’s Hottest Tour — cementing his place as one of pop’s biggest stars.

All of it, according to Steely & Clevie’s lawsuit, on the backs of their intellectual property.

A growing case

The duo first headed to federal court April 2021, accusing Panamanian reggaetón artist and producer El Chombo of infringing “Fish Market” with his “Dame tu Cosita,” a 2018 hit that reached No. 36 on the Hot 100. The suit also named Karol G and Pitbull, who later released a remix of the track.

In their complaint, the lawyers for Steely & Clevie said the “primary rhythm and drum sections” of “Dame tu Cosita” were pulled directly from the earlier song: “At no point did defendants seek or obtain authorization from plaintiffs to use ‘Fish Market’ in connection with the infringing works.”

When the case was first filed, few people took notice. But the lawsuit quickly grew. In October 2021, Steely & Clevie added 10 more songs to the case, including Fonsi’s “Despacito.” In May 2022, they alleged that an additional 44 songs had infringed “Fish Market,” including Daddy Yankee’s “Gasolina.” By September 2022, the lawsuit had ballooned: More than 150 total defendant-artists, including Bad Bunny, accused of releasing a staggering 1,800 infringing songs.

The newer versions of the lawsuit also claimed broader intellectual property rights. In the original, Steely & Clevie claimed only to own a copyright to “Fish Market” itself; as the case evolved, they claimed they also owned rights to “Dem Bow” and “Dub Mix II,” the later songs that utilized “Fish Market.”

In the most recent version of the complaint, filed in April, it takes a full 25 pages to list out all of the defendants, which also include units of Universal Music Group, Warner Music Group and Sony Music Entertainment. Other notable defendants include Anitta, Becky G, Maluma, Tainy, Rauw Alejandro, and Enrique Iglesias, as well as companies BMG Rights Management, Hipgnosis and Kobalt.

Over a whopping 228 pages, the document lays out how each song, like “Despacito,” allegedly infringed what it calls “groundbreaking” drum and bass patterns in the earlier songs.

“The rhythm section of ‘Despacito’ and the ‘Despacito Remix’ copies original elements of the ‘Fish Market’ rhythm section,” Steely & Clevie’s lawyers wrote. “The musical backbones of ‘Despacito’ and the ‘Despacito Remix’ are substantially similar, if not virtually identical, to ‘Fish Market.’”

“Monopolistic”? Or “sensationalist”?

A trial on all those allegations is still years away, even in the fastest scenario. But this past summer, the attorneys representing the artists and labels have been trying to make sure it never gets there.

In a motion filed in June, Bad Bunny’s lawyer Kenneth D. Freundlich demanded that the case be dismissed immediately, calling it a “transparent” attempt by Steely & Clevie to “stake monopolistic control over the reggaetón genre.”

“Plaintiffs’ [lawsuit] impermissibly seeks to monopolize practically the entire reggaetón musical genre for themselves by claiming copyright ownership of certain legally irrelevant and/or unprotectable, purported musical composition elements,” Freundlich wrote for his superstar client.

When the lawsuit’s allegations are “defrocked” of their “façade,” Bad Bunny’s lawyer wrote, all that is left is a simple rhythm itself — and “courts have been consistent in finding rhythm to be unprotectable.”

The majority of the other defendants named in Steely & Clevie’s lawsuit (including Anitta, Pitbull, Karol G, Ricky Martin, Daddy Yankee, Fonsi, Bieber, units of all three majors and more than 70 other defendants) are represented by a single team of lawyers from the law firm Pryor Cashman. That’s the same firm, and some of the same lawyers, that won Ed Sheeran’s big copyright trial in May.

In their motion, the Pryor lawyers echoed Bad Bunny’s genre-monopoly arguments, but they also claimed that the size of the case had turned it into a procedural disaster — a confusing mess in which nobody knows exactly what they’re accused of doing wrong. They said Steely & Clevie had failed to satisfy “the fundamental elements of a copyright infringement claim.”

“The [complaint] is a ‘shotgun pleading’ filled with conclusory allegations that lump defendants together, making it impossible for defendants to determine what each is alleged to have done, what works are at issue and what in those works is allegedly infringing,” the attorneys wrote.

In their own response filings, Steely & Clevie remained undeterred. In an August filing, they argued that the gripes about the size and complexity of the case were unfounded — and that the scale of the lawsuit actually underscored the central point of their allegations.

“While the copyists are legion here, they certainly did copy, and the sheer amount of copying proves the creative and original nature of plaintiffs’ work,” wrote the duo’s lawyers from the Los Angeles-based law firm Doniger/Burroughs. “Defendants want to exploit plaintiffs’ creativity to build careers and reap financial success while denying plaintiffs their just credit and compensation.”

And in a separate response to Bad Bunny’s filing, Steely & Clevie’s attorneys blasted the accusation that they were aiming to own an entire genre of music.

“In the end, Bad Bunny’s motion boils down to a sensationalist, unsupported suggestion that this case somehow ties up the reggaetón genre. Not so,” the duo’s lawyers wrote. “To be sure, the unauthorized copying of the Fish Market pattern now is widespread — copying that necessitated this case. But Bad Bunny cites no authority for the proposition that widespread copying of an original work somehow renders that work unprotectable.”

A hearing before a federal judge, where those arguments will be tested in open court, is set for Friday. Attorneys for both sides declined to comment.

“A pretty wild claim”

With just about every artist in one of the industry’s hottest genres now facing the possibility of copyright liability over a core part of their music, Steely & Clevie’s case could pose something of an existential problem for reggaetón. Artists who want to make songs in the future featuring a similar rhythm would need to ask (and pay for) permission to do so for decades to come — that is, if the case is ultimately successful.

Some copyright experts are skeptical. “This is a case that zeros in on a particular beat that characterizes an entire genre, and they’re basically saying, you can trace it all back to our song, and a piece of everything that flows from that belongs to us,” says Peter DiCola, a professor at Northwestern Pritzker School of Law who has written extensively about music sampling. “I think that’s a pretty wild claim.”

Part of what makes the “Fish Market” case unusual is the long delay. Steely & Clevie waited 30 years to sue, as an entire world of music built up around a rhythm that they now claim to own — no doubt leading some reggaetón artists to think, perhaps reasonably, that dembow was fair game.

But even if that delay seems vaguely unfair, it’s probably not a great defense. In a 2014 case over the movie Raging Bull, the U.S. Supreme Court ruled that there are essentially no time limits to bringing a copyright suit. That decision directly sparked a battle over Led Zeppelin’s “Stairway to Heaven” decades after it was released, as well as many other lawsuits over years-old allegations of infringement.

Instead, the harder questions posed by Steely & Clevie’s case concern the dividing line between historical acknowledgment and exclusive legal ownership. Music historians don’t doubt that Steely & Clevie played a key role in reggaetón’s evolution, but does that entitle them, decades later, to control a crucial part of an entire genre? Put another way, the real question — and it’s potentially a multi-billion-dollar question — is whether they can claim a copyright on the dembow rhythm.

In the abstract, sure. Rhythms are just collections of sounds arranged creatively, like the melodies and lyrics that are clearly covered by copyrights. But in reality, U.S. courts have been hesitant to extend protection to musical elements like rhythms, chord progressions and song structures. Earlier cases have declared them either simply too unoriginal for copyright coverage, or ruled they are “scènes à faire” — a copyright law term for stock elements of a given genre that anyone is entitled to use.

Recent legal battles over music have been dismissed with rulings that the accuser could not claim a monopoly on basic “building blocks” of songs. Led Zeppelin won a case involving “Stairway to Heaven” in 2020, followed by a similar decision in 2022 on Katy Perry’s “Dark Horse.” In May, a federal judge dismissed a lawsuit that accused Ed Sheeran’s “Thinking Out Loud” of infringing Marvin Gaye’s “Let’s Get It On” saying the case — over a chord progression and harmonic rhythm – was seeking an “impermissible monopoly over a basic musical building block.”

Legal experts wonder if the claims about dembow may face similar limitations.

“All credit to them for being really talented musicians,” DiCola says. “But this thing that they’ve created, this common element that runs through as kind of the DNA of these reggaetón tracks — is that really something anyone can own? To me, it seems very much like a basic building block.”