Jamaican duo Mr ‘Clevie’ Browne and Mr ‘Steely’ Johnson of Steely & Clevie Productions (the ‘Claimants’) are taking a long list of artists, record labels and publishers (the ‘Defendants’) to court in the US for copyright infringement.
They claim that the rhythm which is foundational to Reggaeton music originated from their 1989 track ‘Fish Market’ – of which they own the copyright to the recording and composition. Their rhythm is now widely known as ‘Dem Bow’, named after Shabba Rank’s 1990 international hit which made lawful use of it. The Claimants allege that the track was so iconic it has been acknowledged as being widely sampled and/or copied in reggaeton music.
The rhythm is a drum pattern comprised of a combination of elements which they claim was original and ground breaking at the time: “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, timbales that play a roll at the end of every second bar and free improvisation over the pattern for the duration of the song; and a synthesized Bb bass note on beats one and three of each bar”. A transcript of the pattern was included in the US complaint and is shown below:
The Claimants are now suing a myriad of high-profile artists over some of Reggaeton’s biggest tracks which, they allege, incorporate an unauthorised sample of the Fish Market recording and/or a direct copy of the Fish Market composition. The line-up includes El Chombo, Luis Fonsi, Daddy Yankee, Nicky Jam, Karol G, Pitbull and even Justin Bieber. Record labels and publishers are also being sued for their role in and profiting from the reproduction, distribution and publication of the alleged infringing works.
The Defendants deny infringement and allege, amongst other reasons, that the claim should be barred by virtue of i) the time that has elapsed; ii) the innocent nature of use; and iii) the claims being based on alleged similarities to works the Claimants do not own.
The case poses the question of whether a rhythm is protectable under US copyright law and could have far reaching ramifications for the music industry if upheld.
Copyright extends to original works of authorship and can subsist in both the sound recording and composition of a musical work provided that it is in a tangible medium. However, it does not extend to any idea or technique. In the US, the threshold for “originality” is extremely low, requiring only some minimal degree of creativity and that the work is the independent creation of its author. By comparison, the UK threshold for “originality” is slightly higher (albeit still low). It requires the work to be the author’s “own intellectual creation”, meaning the work must be a form of the author’s expression and demonstrate some degree of creative freedom.
In the US, copyright protection is therefore relatively straightforward for a sound recording, however the position is less clear-cut for musical compositions which are comprised of multiple parts. Generally speaking, lyrics and melody are protected parts whereas the building blocks to a composition, which rhythm would typically fall under, are thought to inherently lack the originality required to warrant protection. The case will therefore test whether such a combination of elements as in the Fish Market rhythm is sufficient to meet the threshold of originality in the US.
Significantly, the Claimants have requested a jury trial, which can produce unexpected (and expensive) verdicts, as we saw with the ‘Blurred Lines’ case in 2015. Thicke and Williams were ordered to pay Marvin Gaye’s Estate $5 million in damages for essentially copying the feel of Gaye’s ‘Got To Give It Up’.
In the UK, juries cannot be called upon to decide the outcome of copyright claims and in some respects this grants artists a greater degree of predictability in how copyright law operates. In the 2022 Ed Sheeran ‘Shape of You’ case, the UK High Court found that a Defendant must have had “access and not just the possibility of access” to a copyright work to have copied it, whereas in a decision forming part of the 2020 US Katy Perry litigation, it was sufficient for a jury to conclude that Perry had a reasonable opportunity to have heard the plaintiff’s song when it had received a significant number of streams on YouTube and had been nominated for a Grammy.
If the case were litigated in the UK, the court would need to identify first whether copyright subsists in the Fish Market rhythm, for which the threshold for originality is slightly higher than in the US.
If copyright does subsist, the court would then determine whether it has been infringed. It is immaterial whether the infringing work is derived directly or indirectly from the original work, meaning that subconscious, inadvertent or derivative copying will still be caught provided a causal connection can be established between the original and infringing work.
There could be a valid challenge to bar the claim on the grounds of the length of time that has elapsed but this would ultimately depend on: i) how the court calculates the limitation period; and ii) whether it considers that the Claimants have unreasonably delayed in bringing the claim, causing an adverse effect on the Defendants.
One thing is for sure – if the Claimants do succeed in establishing copyright infringement of their rhythm, the music industry might just skip a beat.