Background
Throughout 2023, an array of artists ranging from Bad Bunny, Daddy Yankee, and Pitbull have been in a legal showdown with the progenitors of Reggaeton. Steely and Clevie (“S&C”) –– two musical producers from Jamaica –– allege that more than 150 popular artists, songwriters and record companies have used their copyrighted works without permission. More specifically, they allege that these parties used a key rhythm from one song has been used without permission. As such, the nature of the lawsuit, and the number of respondents involved, reflect the question of whether a particular rhythm that forms the basis for an entire genre can by copyrightable by the author of the original work. This question is particularly salient to our course in three ways. First through the allegations made by S&C. Second, by defences made by Bad Bunny’s lawyers, and finally how they relate to Canada’s copyright scheme for musical works.
The Rhythm
The Rhythm in question is called Dem-bow. It is a unique combination of beats, kicks and snares that is incorporated in the majority of Reggaeton songs today. It is thus a defining character of the genre, that has helped propel it to global popularity. From Daddy Yankee’s Gasolina to Bad bunny’s Me Porto bonito, Dem-Bow has been a central hallmark of the music scene throughout Latin America. “One scholar estimated that up to 80% of all reggaetón music can be traced to it.”[1] The rhythm traces its origins to S&C’s 1990 song Fish Market, that had the rhythm prominently feature on the song. This rhythm was subsequently sampled by reggae producers as an ingredient to create many of their own remixes”[2]. This progenitor rhythm was then exported throughout Latin America where it became a cornerstone of Reggaeton. However, during this period, it does not appear that S&C attempted in any way to claim copyright as the Rhythm spread. Thus, by the time they launched their lawsuit, Dem-bow had saturated the genre, with S&C asserting that over 1,600 songs infringe copyrights by interpolating and/or sampling”[3] Fish Market. It thus seems somewhat incredulous that so many artists, due to their use of this sample are now accused of wrongfully using the sample without “seeking or obtaining a license, authorization, or consent to use or copy the original Fish Market sample”[4].
Bad Bunny’s Defence
Counsel for Bad Bunny has established two substantial arguments that refute S&C’s accusations. These arguments explore the originality of the rhythm as well as whether they can even be considered copyrightable in the first place. The originality argument holds that Dem-Bow is simply a rhythm, and that “courts have been consistent in finding rhythm to be unprotected”[5]. Hence, while the beat does incorporate a unique use and arrangement of musical instruments, it is irrelevant since, in the United States instrument choices are irrelevant to the copyright. Thus, given the fact that “Dem-Bow” is merely a short rhythmic pattern there is no copyright protection. Moreover, Bad Bunny argues that copyright protection does not extend to Dem-Bow because the rhythm is a “commonplace element that is firmly rooted in the genre’s tradition”. In other words, “Dem-Bow” is so ever present, and its expression naturally associated with reggaeton, that it should be treated like an idea and therefore not protected by copyright.
Relation to Course Material
A key element of S&C’s argument hinges on the question of whether the material is copyrightable in the first place. If we follow S&C’s logic, then copyright would subsist because they created a “particular means, method and manner” of organizing musical notes and instruments (Winkler v. Hedley). However, Bad Bunny puts forward an argument akin to the judgement in Delrina Corporation v. Triolet Systems. Just like how there are only a limited number of ways to achieve a particular result in a computer program, “to hold that way or ways as copyrightable would give the holder monopoly on the idea or function itself[1]”. Thus, the genre itself is only expressible in an extremely limited number of ways. To take away the Dem-Bow Rhythm would be to destroy an entire genre. Indeed, it appears that Bad Bunny’s counsel is leaning on subsistence as a key element to dispute S&C. They introduce the Scenes a faire doctrine that reflects Delrina. “Under the Scenes a faire doctrine, when certain commonplace expressions are indispensable and naturally associated with the treatment of a given idea, those expressions are treated like ideas and are therefore not protected by copyright”[6]. Thus, if Dem-Bow is indispensable in the conceptualization and expression of reggaeton, then it is not copyrightable. Finally, this situation does warrant a question about public interest. Reggaeton is a genre that is oftentimes used to spread political messages. Should copyright be used to stifle it?
Conclusion
This lawsuit undoubtably asks some substantial questions related to the copyright protection of musical works and their constituent parts. Dem-Bow is indeed a unique rhythm that was created by the plaintiff. However, the defendants –– in particular Bad Bunny –– have a valid defence in alleging that rhythm is not copyright protected and is akin to an idea due to how important it is in the expression of Reggaeton. With that being said, the court clearly has its work cut out in balancing competing interests. On one hand, S&C were the progenitors of an integral element of a genre, and it seems unfair to not compensate them for their creative efforts. On the other, it also seems equally unfair to hold an entire genre’s worth of producers, artists, and record companies liable for copyright infringement. Time will tell which side will win. But irrespective of the outcome Reggaeton music will be heard in many a club from Miami to Toronto.
Sources:
[1] Aaron Moss “Bad Bunny Wants Out Of Lawsuit He Says Is Trying To Control Reggaetón” June 15 2023, Online: Copyrightlately < https://copyrightlately.com/bad-bunny-wants-out-of-lawsuit-he-says-is-trying-to-control-reggaeton/>
[2] Ibid
[3] Cleveland Constantine Browne et al v. Rodney Sebastian Clark et al., 2:21-cv-02840-AB-AFM, Para 1
[4] Ibid, para 75
[5] “Bad bunny and Rimas music’s notice of motion and motion to dismiss”, Cleveland Constantine Browne et al v. Rodney Sebastian Clark et al., 2:21-cv-02840-AB-AFM, Para 3
[6] Delrina Corp (cob Carolian Systems) v Triolet Systems Inc
[7] Moss, supra note 1
https://www.youtube.com/watch?v=ZRnp5vwF5yA
Communications Law