By: Mayel Tapia-Fregoso

In the United States, copyright law protects original works of authorship that are fixed in a tangible medium. A song can receive two separate copyrights. First, a song can be copyrighted as a musical composition, including its lyrics. Second, the sound recording of that musical composition can also be copyrighted. While entire songs and their sound recordings can be copyrighted, small groupings of notes within a musical work are typically not protected. Recently, a lawsuit filed in the Central District of California names reggaeton stars Bad Bunny, Karol G, Daddy Yankee, and more than one hundred other artists in a copyright infringement lawsuit that has the potential to rock the music world and expand copyright protections for musical works. 

Browne v. Donalds

On April 1, 2021, Steely and Clevie Productions filed a copyright infringement lawsuit against more than one hundred defendants, alleging that their music infringed on Steely and Clevie’s copyrighted works. In the complaint, Steely and Clevie—a Jamaican reggae duo—allege that the defendants sampled the “dembow” rhythm without permission. Sampling is when artists take a portion of another artist’s sound recording and incorporate it into their own audio-only recording of a new song. Artists must obtain permission from the copyright owner of the song and the copyright owner of the sound recording they wish to sample to avoid a copyright infringement lawsuit. The copyright holder(s) of that musical work and sound recording have the option to refuse to license the work, unlike compulsory licensing involved in song covers.

In 1989, Steely and Clevie released the song “Fish Market,” which first featured the dembow rhythm. In 1990, they collaborated with artist Shaba Ranks, incorporating the beat into his song “Dem Bow,” which gave the dembow rhythm its moniker. Later that year, another artist, Dennis “the Menace” Haliburton, incorporated that same beat in his song, “Pounder Riddim.” According to Steely and Clevie’s complaint, the defendants sampled and “mathematically copied” the dembow rhythm from Pounder Riddim for decades. Many artists in the Dominican Republic would later adopt the dembow drum pattern, which became the foundation of reggaeton and Latin American pop music. Some of reggaeton’s biggest hit songs—Daddy Yankee’s “Gasolina,” Bad Bunny’s “Tití Me Preguntó,” and Karol G & Peso Pluma’s “Qlona”—are among thousands of songs that incorporate an iteration of the iconic rhythm. 

Attorneys for Steely and Clevie argue that reggaeton artists did not obtain a license for the “distinctive drum pattern that has become the foundation of the entire genre.” They claim that the industry has exploited the rhythm and has generated revenue from the infringing works. Attorneys for the defendants argue that Steely and Clevie seek to “monopolize” the reggaeton genre by “claiming exclusive rights to the rhythm and other unprotectable elements” shared by all reggaeton songs. The presiding judge, Andre Birotte Jr., expressed concerns for the “stifling” effect that a verdict for the plaintiffs could have on the music industry. The judge is tasked with ruling on the defendant’s motion to dismiss. 

Can Dembow be Copyrighted

The lawsuit poses a number of questions. First, is the dembow rhythm protectable under copyright law? Under the Copyright Act of 1976, artists, composers, and publishers can copyright musical compositions and sound recordings. In a musical composition, typically, the lyrics of a work and the work’s melody are protectable. The melody includes “the order and rhythm of pitches that make up the main melody line of a piece of music.” However, “in most cases, the sequence of rhythms and “groove of a song” lie outside the protections of copyright law. Likewise, a song’s arrangement and structure is not copyrightable because two songs with the same structure may sound different. But rarely, a rhythm can be copyrighted if the plaintiffs can successfully prove that it is “substantially unique or original.” Courts have spent decades balancing the interests of copyright holders and the interests of the creative community to encourage the production of arts. 

Why Bring This Case Now?

Second, were Steely and Clevie truly the first to create the dembow rhythm or simply the first to “record the popular Jamaican street beat” in a fixed medium? In Jamaica and Latin America, it is common for artists to borrow and sample instrumental tracks without the threat of litigation. Early reggaeton artists in Puerto Rico were inspired by “Jamaica’s tradition of using popular instrumentals to propel new, live, and local performances.” Although Steely and Clevie’s Fish Market was the first song to “fix” the dembow instrumental rhythm, it may be impossible to determine if Fish Market inspired early reggaeton artists or if they were first inspired by the Jamaican music scene that was so popular throughout Latin America. In reggaeton’s early years, the genre had little economic value. By 2023, though, reggaeton music was responsible for billions of streams, helping propel Latin music to become the fourth most popular music genre in the world by stream volume. Now, more than 30 years after Fish Market’s release, Steely and Clevie seek to capitalize on reggaeton’s billion-dollar industry. 

The Case for Steely and Clevie

Steely and Clevie’s supporters argue that the Jamaican duo and other Jamaican artists that have inspired the highly successful genre deserve recognition for their contributions to reggaeton music. These proponents argue that, at its core, this case is about black artists’ music being exploited for profit. Reggaeton historian Katelina Eccleston believes that despite the tradition of reuse in Jamaican and Latin music, it shouldn’t preclude artists, like Steely and Clevie, from receiving songwriting credit. In her view, Jamaican genres have amassed worldwide popularity but “lack economic parity” with reggaeton because, across the Americas, artists with lighter skin complexions that dominate reggaeton are given greater privileges. Eccleston says, “Everybody wants Jamaican music and culture, but they don’t want to make sure Jamaicans can eat.” 

If Steely and Clevie are successful, there will likely be more lawsuits alleging infringement for appropriating popular rhythms, creating more confusion over the protectable musical elements in compositions due to the nuanced cultural components of this infringement case.