A federal judge has sided with Bad Bunny, Drake, and a host of other superstar artists and reversed an earlier ruling that had cleared the way for a trial with potentially broad implications for the reggaeton genre.
In the new ruling obtained by Rolling Stone, the judge said lawyers for Bad Bunny persuaded him that he erred in a decision last July when he found that a jury should decide whether an estimated 1,800 reggaeton songs by more than 100 artists infringed the composition copyright held by Cleveland “Clevie” Browne and the heirs of Wycliffe “Steely” Johnson for the 1989 song “Fish Market.”
The plaintiffs had claimed the song was the source of reggaeton’s so-called dembow rhythm, the signature percussion pattern that helped define the genre. But after reconsidering the issue following a tense hearing covered live by Rolling Stone, U.S. District Judge André Birotte Jr. said he would no longer allow the composition copyright claims to proceed to trial.
Birotte said the defendants successfully argued that Steely & Clevie appeared to be seeking to enforce a copyright based on a combination of musical elements drawn from different songs, a theory he said copyright law does not support.
“Upon further review of the record, the court concludes that plaintiffs have not clearly identified what copyrighted work contains the allegedly protectable selection and arrangement they seek to enforce,” he wrote. “Because plaintiffs have not identified a single copyrighted work containing the alleged protectable selection and arrangement, plaintiffs cannot, as a matter of law, proceed on the theory presently pleaded.”
At the hearing last month, Bad Bunny’s lawyers, who were joined by attorneys from the other artists in the lawsuit, argued the musical elements that the judge found potentially protectable — referred to in the case as the “Fish Market Elements” — were actually a “pastiche” assembled from different portions of different songs.
Kenneth Freundlich, the lead lawyer for Bad Bunny, pointed to sworn testimony in which Clevie Browne said the two-measure pattern identified as “Fish Market” in the complaint actually was made up of “two bars not connected in the song ‘Fish Market.’” Freundlich said Browne testified that the first bar came from the opening measure of “Fish Market,” while the second came from bar 22.
Freundlich further argued that two-bar timbale loop identified as protectable in the complaint appears only in the related song “Pounder (Dub Mix II),” which does not contain the tambourine element identified as protectable in “Fish Market.” He also noted that Steely & Clevie do not own the composition copyright for “Pounder,” only the copyright to its sound recording. (Jamaican producer Dennis “The Mennace” Halliburton owns the composition copyright and is not a party to the lawsuit.)
Judge Birotte’s new ruling ends a large portion of the lawsuit that Freundlich argued would have created “a complete mess,” with discovery and trial preparation involving roughly 1,800 songs by scores of prominent artists, including Karol G, Anitta, Pitbull, Justin Bieber and Daddy Yankee, potentially “taking us into 2035.”
“The court has now confirmed what the defendants have maintained from the outset: that copyright protects an original, single work, not a combination of elements assembled from several different songs for the purpose of a lawsuit,” Freundlich said in a statement reacting to the ruling. “This is a significant result not only for [Bad Bunny’s label and management company] Rimas and Bad Bunny, but for the many artists who were swept into this case, and for the integrity of copyright law itself. We are grateful to Judge Birotte for reconsidering this critical threshold issue and for recognizing that, to maintain a federal copyright case, a plaintiff must identify a single copyrighted work that actually embodies the arrangement it claims to own.”
The judge said the parties now must propose a schedule for addressing the remaining claims, which involve allegations that various artists directly sampled Steely & Clevie’s sound recordings. That portion of the case is far narrower.
Daddy Yankee, Enrique Iglesias, Anitta, Rosalia, Pitbull, Universal Music Group, Warner Music Group, and Sony Music are represented in the lawsuit by Pryor Cashman partners Don Zakarin, Ben Akley, Frank Scibilia, and James Sammataro.
Bad Bunny previously denied allegations that dozens of his reggaeton songs infringed Steely & Clevie’s work, including “Tití Me Preguntó,” “Un Ratito” and “Una Vez.”
