Reggaeton artists challenge originality of 'dembow' rhythm in copyright battle

LOS ANGELES (CN) — Attorneys for dozens of reggaeton artists, including global stars Bad Bunny and J Balvin, on Friday sought to persuade a federal judge that the so-called “dembow” beat incorporated in a 1989 instrumental track by two Jamaican producers wasn’t an original creation that merits copyright protection.

U.S. District Judge André Birotte Jr. declined to rule at a downtown Los Angeles hearing on cross-motions for summary judgment over whether the percussion arrangement of “Fish Market,” a B-side recorded by Cleveland Browne and the late Wycliffe Johnson, professionally known as Steely and Clevie, is original enough to merit copyright protection.

But the judge said the sprawling lawsuit ultimately turns on dueling expert testimony over whether the Jamaican producers’ drum pattern — including kick, snare, hi-hat and tom elements — was sufficiently original to support claims that thousands of reggaeton songs unlawfully copied it.

“I have to decide as a matter of law for one side or the other when there’s an army of experts basically shooting at each other,” Birotte said, referring to the numerous reports of musicologists the plaintiffs and defendants filed to support their arguments.

If the Barack Obama appointee denies both sides’ requests for summary judgment — which would resolve the dispute based on undisputed facts — the case would proceed to a jury unless the parties settle.

Stephen Doniger, who represents Browne and Johnson’s estate, said defense experts failed to identify any earlier work containing the same combination of drum, percussion and bass elements found in “Fish Market.”

“What is clear in this case is that there’s nothing out there in the world that shows that they copied” the percussion arrangement, Doniger told the judge.

Doniger acknowledged that “Fish Market” incorporates a common habanera rhythm — a kick-and-snare boom-ch, boom-ch pattern that is not copyrightable — but said Steely and Clevie layered additional percussion elements that made the arrangement subtly but distinctly original.

The infringement claims are complicated by the song’s later history. “Fish Market” was first recorded as a B-side to Gregory Peck’s “Poco Man Jam,” then licensed to dancehall artist Shabba Ranks, who used it in his 1990 hit “Dem Bow,” giving rise to what became known as the “dembow riddim” or “dembow rhythm” moniker.

Next, “Dennis the Menace” Halliburton incorporated the rhythm into his “Pounder Riddim" recording. Plaintiffs say a later version, “Pounder Dub Mix II,” was then sampled or copied “mathematically” by numerous reggaeton artists in recent years.

Benjamin Akley, who represents many of the accused artists and record labels, countered that the producers’ original percussion arrangement does not appear in any single work. Instead, he argued, plaintiffs stitched together elements from multiple tracks to claim ownership of a protectable composition.

The “Pounder Dub Mix,” Akley said, merely recreates aspects of “dembow” by looping two separate, noncontiguous measures from “Fish Market.”

“None of this matters if they don’t own what they claim they own,” Akley told the judge. “The rest is shuffling deckchairs on the Titanic.”

Akley also argued that features of the “Fish Market” percussion arrangement — such as timbre and texture — which the producers say make the work original, are too abstract to qualify for copyright protection under Ninth Circuit law.

Ken Freundlich, who represents Bad Bunny, accused the plaintiffs of “shapeshifting,” saying they were trying to assemble a Frankenstein-like work from pieces of different recordings, leaving defendants unclear about what, if anything, they are accused of infringing.

“We have thousands of songs in this case and we still don’t know what we’re comparing them to,” Freundlich told the judge. “That’s the cardinal sin of this case — we don’t know what we’re infringing.”

Birotte last year denied the defendants’ bid to dismiss the lawsuit, in part because he said that, it was too early at that stage of the litigation to determine if “Fish Market” and the subsequent works were original enough to warrant copyright protection.

The judge told the lawyers he’ll try to issue a ruling on the motions for summary judgment by the end of January.

Follow @edpettersson