Copyright

AI’s Creative Ambitions: A Case Review of Thaler v. Perlmutter (2023)

/ Washington Journal of Law, Technology & Arts / Leave a comment

By: Stella B. Haynes Kiehn

Is it possible for AI to achieve genuine creativity?  Inventor and self-dubbed “AI Director”, Dr. Stephen Thaler (“Thaler”), has been attempting to prove to the U.S. Copyright Office for the past several years that not only can AI be creative, but also that AI can create works capable of reaching copyright standards.

On November 3, 2018, Thaler filed an application to register a copyright claim for the work, A Recent Entrance to Paradise. While Thaler filed the application, Thaler listed “The Creativity Machine”, as the author of the work, and himself as the copyright claimant. According to Thaler, A Recent Entrance to Paradise was drawn and named by the Creativity Machine, an AI program. The artwork “depicts a three-track railway heading into what appears to be a leafy, partly pixelated tunnel.” In Thaler’s copyright application, he noted that A Recent Entrance to Paradise “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”

The U.S. Copyright Office denied Thaler’s application primarily on the grounds that his work lacked the human authorship necessary to support a copyright claim. On a second request for reconsideration of refusal, “Thaler did not assert that the Work was created with contribution from a human author … [but that] the Office’s human authorship requirement is unconstitutional and unsupported by case law.” The U.S. Copyright Office once again denied the application. Upon receiving this decision, Thaler appealed the ruling to the U.S. District Court for the District of Columbia.

On appeal, Judge Beryl A. Howell reiterated that “human authorship is an essential part of a valid copyright claim.” Notably, Section 101 of the Copyright Act requires that a work have an “author” to be eligible for copyright. Drawing upon decades of Supreme Court case law, the Court concluded that the author must be human, for three primary reasons.

First, the Court stated that the government adopted the Copyright Clause of the U.S. Constitution to incentivize the creation of uniquely original works of authorship. This incentivization is often financial, and non-human actors, unlike human authors, do not require financial incentives to create. “Copyright was therefore not designed to reach” artificial intelligence systems.

Second, the Court pointed to the legislative history of the Copyright Act of 1976 as evidence against Thaler’s copyright claim. The Court looked to the Copyright Act of 1909’s provision that only a “person” could “secure copyright” for a work. Additionally, the Court found that the legislative history of the Copyright Act of 1976 fails to indicate that Congress intended to extend authorship to nonhuman actors, such as AI. To the contrary, the congressional reports stated that Congress sought to incorporate the “original work of authorship” standard “without change.”

Finally, the Court noted that case law has “consistently recognized” the human authorship requirement. The decision pointed to the U.S. Supreme Court’s 1884 opinion in Burrow-Giles Lithographic Company v. Sarony, in upholding the constitutionality of the human only authorship requirement. This case, upholding authorship rights for photographers, found it significant that the human creator, not the camera, “conceived of and designed the image and then used the camera to capture the image.”

Ultimately, this decision is consistent with recent case law, and administrative opinions on this topic. In mid 2024, the Copyright Office plans to issue guidance on AI and copyright issues, in response to a survey of AI industry professionals, copyright applicants, and legal professionals. In relation to the Creativity Machine, one of Thaler’s main supporters in this legal battle is Ryan Abbott, a professor of law and health sciences at the University of Surrey in the UK, and a prominent AI litigant. Abbott is the creator of the Artificial Inventor Project—a group of intellectual property lawyers and an AI scientist working on IP rights for AI-generated outputs. The Artificial Inventor Project is currently working on several other cases for Thaler, including attempting to patent two of the Creativity Machine’s other “authored” works. While the District Court’s decision seems to mark the end of Thaler’s quest to copyright A Recent Entrance to Paradise, it seems as if the fight for AI authorship rights in copyright is only beginning.

Plot Twist: Understanding the Authors Guild v. OpenAI Inc Complaint

/ Washington Journal of Law, Technology & Arts / Leave a comment

By: Stella Haynes Kiehn

While George R.R. Martin remains hard at work on the final installments in the critically acclaimed A Song of Ice and Fire series; in July 2023, one tenacious fan used ChatGPT to finish the series in a fraction of the time. For fans who don’t feel the urge to read speculations, ChatGPT can also write entirely new stories set in the style and world of any author whose work exists on the internet. These AI-generated novels are only part of a growing issue about the use of copyrighted works to train Large Language Models (LLM) such as ChatGPT. Now, the authors are looking to reverse the narrative. In a complaint filed on Sept. 19, 2023, in the Southern District of New York, the Author’s Guild, the nation’s oldest and largest organization of writers, is suing Open.AI, the maker of ChatGPT, in a class action lawsuit.

The complaint alleges that OpenAI used the authors’ voices, characters, stories, etc. to train ChatGPT, which in turn allowed users to create unauthorized sequels and derivatives of their copyrighted works. Plaintiffs argue that OpenAI should have first obtained a licensing agreement to use their copyrighted works. Plaintiffs also seek a permanent injunction against OpenAI to prevent the alleged harms from reoccurring. All authors seek damages for the lost opportunity to license their works, and for the “market usurpation defendants have enabled by making Plaintiffs unwilling accomplices in their own replacement.” The named plaintiffs include David Baldacci, Mary Bly, Michael Connelly, Sylvia Day, Jonathan Franzen, John Grisham, Elin Hilderbrand, Christina Baker Kline, Maya Shanbhag Lang, Victor LaValle, George R.R. Martin, Jodi Picoult, Douglas Preston, Roxana Robinson, George Saunders, Scott Turow, and Rachel Vail.

At issue legally is Title 17 of the United States Code. The complaint brings claims under 17 U.S.C. §501 for direct, vicarious, and contributory copyright infringement. 17 U.S.C. §501 allows for copyright owners to sue for enforcement of their exclusive rights and 17 U.S.C. §106 sets forth a list of exclusive rights for copyright owners. Different plaintiffs allege different infringements upon the §106 rights, but all plaintiffs commonly allege ChatGPT’s ability to provide derivative works infringed on their copyrighted materials. Under 17 U.S.C. §101, “a ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” For instance, Plaintiff Martin alleges that “when prompted, ChatGPT generated an infringing, unauthorized, and detailed outline for an alternate sequel to A Clash of Kings, one of the Martin Infringed Works, and titled the infringing and unauthorized derivative “A Dance With Shadows,” using the same characters from Martin’s existing books in the series A Song of Ice and Fire.” Under U.S. Copyright Law, only a copyright owner may prepare, or authorize someone else to prepare, a derivative work from the copyrighted material. All plaintiffs also commonly allege ChatGPT’s ability to recite verbatim passages from the copyrighted works. Under 17 U.S.C 106, only copyright owners can create, or license the ability to create, direct copies of their work. However, it should be noted that at the time the complaint was filed, ChatGPT will no longer provide direct excerpts from copyrighted works.

Screen capture of the blog author’s attempt to engage ChatGPT with copyrighted content.

Although it is certain that ChatGPT has produced infringing work, how do we know that OpenAI knowingly trained ChatGPT on copyrighted materials? The complaint provides multiple reasons. First, until very recently, “ChatGPT could be prompted to return quotations of text from copyrighted books with a good degree of accuracy, suggesting that the underlying LLM must have ingested these books in their entirety during its ‘training.’” Second, the presence of derivative works on the internet created by ChatGPT suggests that it had access to the source materials. For example, author Jane Friedman discovered “a cache of garbage books” written under her name for sale on Amazon that were created by ChatGPT. Third, it is likely that OpenAI trained ChatGPT on copyrighted items because, as one group of AI researchers have observed, books are essential for chatbot development; “[b]ooks are a rich source of both fine-grained information, how a character, an object or a scene evolve through a story.” Finally, OpenAI has essentially confirmed this to be true, stating that their  “training” data is “derived from existing publicly accessible ‘corpora’ … of data that include copyrighted works.”

Open AI maintains that its actions were lawful. In a blog post responding to the filing of The New York Times v. OpenAI, a suit about using New York Times copyrighted materials to train ChatGPT, OpenAI argues that “based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.” The Library Copyright Alliance (LCA) also supports a fair use argument, pointing to the history of courts applying the US Copyright Act to AI. Fair use is a legal doctrine that permits the unlicensed use of copyright-protected works in certain circumstances, such as for parody, comment, or criticism. The LCA focuses on “the precedent established in Authors Guild v. HathiTrust and upheld in Authors Guild v. Google.” Notably, in Authors Guild v. Google, the US Court of Appeals for the Second Circuit held that Google’s mass digitization of a large volume of in-copyright books to distill and reveal new information about them was a fair use. The LCA argues that “while these cases did not concern generative AI, they did involve machine learning” and the fair use precedents could summarily be applied.

Despite the plaintiff’s complaints about how AI is currently being used, the complaint specifically states that the “plaintiffs don’t object to the development of generative AI”.The complaint simply asserts that “defendants had no right to develop their AI technologies with unpermitted use of the authors’ copyrighted works. Defendants could have “‘trained’ their large language models on works in the public domain or paid a reasonable licensing fee to use copyrighted works.” In fact, the complaint specifically recognizes that OpenAI’s chief executive Sam Altman has told Congress that he shares Plaintiffs’ concerns. According to Altman, “Ensuring that the creator economy continues to be vibrant is an important priority for OpenAI. … OpenAI does not want to replace creators.”

Unfortunately for any curious Game of Thrones fans out there, the ChatGPT produced novels have been removed due to the pending lawsuit. However, as AI Chatbots grow more powerful, and users grow more adept, it is undoubtedly true that further lawsuits similar to this one will occur. Open AI amended the complaint in December 2023 to include Microsoft, an investor of OpenAI. The complaint now alleges that “OpenAI’s ‘training’ its LLMs could not have happened without Microsoft’s financial and technical support arising from OpenAI’s use of their copyrighted works to train ChatGPT.” The inclusion of Microsoft, a powerful defendant, against the Author’s Guild, a prominent litigant, creates the potential for this case to have far-reaching ramifications for both copyright holders and AI developers.

Fables: Free For All or Owned By One?

/ Washington Journal of Law, Technology & Arts / Leave a comment

By: Drew Carlson

What does it take to release a copyrighted work into the public domain? On September 15, 2023, writer Bill Willingham decided to test just that, releasing his comic book series Fables into the public domain after years of fighting with his publisher, DC Comics (“DC”). Can an author release a work into the public domain before the copyright protection expires? If the author is the legal owner of the copyright, then he or she may do so, but this is often not the case. Willingham will need to prove he is the sole owner of the Fables copyright. 

Once Upon a Time

Willingham is the writer of the award winning comic book series Fables, published by DC Comics for their adult-oriented Vertigo imprint. The series is set in a universe where characters from fairy tales and folklore have taken refuge in modern day New York. They live in a secret community, hiding from both regular humans, and the Adversary who conquered their homelands.

According to Willingham, he signed a “creator-owned publishing contract” with DC, which made him the sole owner of the intellectual property but forbade him from “publish[ing] Fables comics” or licensing the property “through anyone but them.” The series’ copyrights were registered with the Copyright Office, each within two years of the work’s creation. It is not known which party submitted the registration. The copyrights list Willingham as author of the text, and DC as author of the art via work for hire.

The partnership between Willingham and DC did not live happily ever after, as disputes eventually arose. These disputes included DC failing to consult with Willingham when contractually required, underreporting his royalties, and trying to convince him to write future issues as “work for hire.” These slights culminated on September 15, 2023, when Willingham announced on his Substack that “the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain.” His subsequent posts reiterated this point, saying, “As the sole owner and creator of the comic book property called Fables . . . I alone had the right . . . to do this.” He posted four blog posts in total discussing his decision. Willingham chose not to publish his full contract with DC for privacy reasons.

DC responded to Willingham’s declaration with its own, saying “The Fables comic books and graphic novels published by DC . . . are owned by DC . . . and are not in the public domain.”

What is the Public Domain?

The public domain is a term for intellectual property that is owned by everyone. Under copyright law, owners hold many exclusive rights to their work, such as the right to publish, reproduce, or create derivative works. By contrast, public domain works, because they belong to everyone, have no limitations on their use.

Some public domain works were once copyrighted, their rights having expired, e.g. Pinnochio or Sherlock Holmes; others were always in the public domain, works such as Cinderella or Snow White that were never granted copyright protection for one reason or another. 

Does Willingham own Fables?

If Willingham’s contract says what he claims, he does own Fables. Under copyright law, the author of the work is the initial owner. However, if more than one individual contributes substantial elements to the work, while intending their contributions to join into one joint work, they are joint-authors. Joint-authors each own an equal and undivided share in the entire work. No joint owner can convey more than they own. For instance, none of them can make an exclusive license without the other owners’ written permission since that would violate the other owners’ rights. Comic books where one author writes the text and the other draws the art qualify as joint works. Works made by employees are “works for hire,” where, unless agreed otherwise, the employer is considered the author of the work. Copyrights can also be transferred or assigned. 

When a copyright is registered within five years of the work’s creation, the registration and the facts within are presumed valid, which may be rebutted if a party “offers some evidence” to dispute the registration’s validity.

The Copyright Office lists both Willingham and DC as the authors of Fables, Willingham for the text, and DC for the art. Since comic books are joint works, and the copyrights were registered within five years of creation, Willingham and DC comics are presumed joint-owners of Fables.

However, this presumption can be rebutted by showing disputing evidence, such as Willingham’s contract. If Willingham is correct that his contract gives him sole ownership of Fables, then it would prove that DC transferred any ownership it possessed as a joint-author to Willingham. Thus, Willingham would be the sole owner. 

It is unknown whether Willingham or DC registered Fables’ copyrights as joint-works. If Willingham did, then DC might try to argue that Willingham did not treat Fables as his. However, such an argument could be countered with the fact that DC themselves assigned their rights to Willingham. Willingham could also point out that he has followed his contract for over twenty years.

How does sole ownership versus joint ownership affect Willingham’s authority to release Fables into the public domain?

Can Willingham Place Fables into the Public Domain?

Willingham has the authority to release Fables into the public domain provided that he is the sole owner. While there is no express provision for abandonment in the Copyright Act, several court cases say that proprietors can abandon a copyright if they both intend to abandon the work and perform an overt act demonstrating that intent. However, an owner must be very clear about what they mean to abandon. Once, a man made several meditation videos and repeatedly said he neither cared about copyrights nor wanted to control his videos. These statements released one of his videos into the public domain, but were insufficient to release his later ones. On the other hand, in 2002 an architect provided designs for a competition, signing a document saying that he retained no copyrights to them. This admission released such designs into the public domain.

Willingham clearly intended to release his work; he said so multiple times. He also made not one, but four overt acts via his Substack posts, which repeatedly stated his intent to surrender all of Fables into the public domain. Therefore, if Willingham is indeed the sole owner, he may release Fables into the public domain.

If Willingham and DC are joint-owners, though, then Willingham cannot release Fables into the public domain. The rule regarding exclusive licenses stipulates that one owner cannot negate another’s right without written permission. Willingham did not have DC’s permission, meaning he cannot unilaterally terminate their share.

What happens next?

DC Comics publicly maintains that it owns Fables, but it has not filed any legal action. Since a lawsuit against Willingham or accused infringers risks a court declaring the entire series to be within the public domain, DC will likely avoid litigation whenever possible. Instead, it will use the undetermined nature of Fables’s ownership to deter would-be copiers through the threat of a potential lawsuit. Things will likely not stand at this stalemate for long though, as there will inevitably be those who take Willingham at his word and use Fables for their own creative works. DC will quickly have to decide how many alleged violations it can let slide before going to court.

Happily Ever After?

If Willingham is indeed the sole owner, per his claimed contract, then a court would likely find the series to be properly released into the public domain. If Willingham is not, then DC retains its exclusive right to publish the series. Ultimately, the answer to this question centers on contract law, specifically whether DC transferred its ownership. Without viewing Willingham’s contract, it is impossible to say for certain who will prevail. Should Willingham prevail, the threat of placing works into the public domain will hand creators a bargaining chip against unscrupulous publishers. Should DC emerge victorious in litigation, publishers will have a reinforced blueprint to compel creator compliance.Will Fables be freed into the public domain to live happily ever after or remain trapped within the walls of its wicked stepmother’s copyright control? We will just have to wait and see.

Can we go see Mickey? We have Mickey at home! Mickey… at home?

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Skitterphoto on Pexels.com

By: Kevin Vu

Nearly 100 years ago, Walt Disney released “Steamboat Willie,” showcasing Mickey Mouse’s first adventure. That mouse would kickstart what is now one of the world’s biggest companies, Disney. Today, Disney does a variety of things: it operates its own streaming services, runs a majority of the world’s most popular theme parks, and releases some of the world’s highest grossing movies. At the center of all that success is Mickey Mouse, who’s been dubbed “the world’s most famous cartoon character.” But Mickey is no longer just Disney’s to parade around, recently Mickey has become part of the public domain. What does being part of the public domain really mean though? This blog will explore and explain Mickey’s complicated history with copyright, what the public domain is, and what being in the public domain means for both Mickey’s future and others similarly situated to him. 

Copyright’s Origins

Copyright law originates from Article I, Section 8, Clause 8 of the United States Constitution which provides that Congress shall have the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright is a set of protections from the federal government for originally created works. Copyright disallows others from using the work without the author’s permission, and as was alluded to earlier, protection generally lasts for the author’s lifetime plus 70 years after the author’s death. In 1790, Congress used that power to pass the first Copyright Act which extended protection of works to 14 years, with a renewal period of another 14 years. 

Then, in 1909, a new Copyright Act doubled the length of protection for works from 28 years to 56 years, along with adding protections for motion pictures. “Steamboat Willie” was then released in 1928, and fast-forwarding some years and some minor changes to the Copyright Act, Disney entered the copyright arena in 1998. By that time, Mickey’s copyright was set to expire in 2003. Disney, worried about its copyright for Mickey, successfully lobbied Congress to protect him for 20 more years—extending his copyright expiration date to 2024. But that was the final extension for the mouse, as he is now part of the “public domain,” no longer just the sole property of Disney. 

What’s the Public Domain?

In contrast to copyrighted works, the public domain consists of “creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws.” That means that items which were not originally subject to intellectual property protections, like laws for example, are part of the public domain and freely usable by individuals. Creative materials, like Mickey, which were previously protected under laws like copyright may also become part of the public domain once their copyright has expired.

Once something is in the public domain, it is fair game for any one to use. As the United States Supreme Court articulated in Dastar Corp. v. Twentieth Century Fox Film Corp., uncopyrighted materials are not protected under federal law. Further, because Article I, Section 8, Clause 8 vests the power to protect creative endeavors in Congress, states are precluded from passing copyright laws under the Supremacy Clause of the U.S. Constitution. This means that anyone can use works in the public domain without obtaining permission or giving credit to the original author, and no one can ever own that work.

Mickey… at home?

One can immediately see why Mickey’s move to the public domain is problematic for Disney. 20 years ago, it was estimated that Mickey Mouse had made over $5.8 billion for Disney. This explains why Disney was adamant about lobbying Congress for copyright protection extensions, as Mickey going to the public domain could affect his worth. 

Fast-forwarding to today, Mickey has entered the public domain, with one company has already announced that they plan on making a Mickey Mouse horror movie, following in the footsteps of “Winnie-the-Pooh: Blood and Honey,” a Winnie the Pooh slasher movie created when Pooh Bear entered the public domain in 2023. Ultimately, it remains to be seen what else individuals will do with Mickey.

But luckily for Disney, Mickey’s presence in the public domain does not spell the end of their rights to the iconic character. Copyright law makes distinctions between versions of characters meaning only the “Steamboat Willie” version of Mickey is in the public domain and usable by anyone. The red shorts, big-boots, and high-pitched voice of the current Mickey Mouse remains Disney’s property, and is therefore subject to copyright protection. Another thing to note is that Disney’s use of Mickey as a brand or symbol is protected under trademark law. So, while “Steamboat Willie” Mickey is freely usable, individuals should be careful not to confuse that character with his newer versions, and avoid making it seem like Disney endorses their new creative work. As some commentators have noted, Disney is actively seeking to protect its brand and anyone seeking to use Mickey should seek out legal counsel.  

Ultimately, it remains to be seen whether Mickey’s introduction into the public domain will create new, expansive creative works, or if Disney will continue to aggressively fight for the mouse. Whatever the case, Mickey’s move into the public domain is a historic event, and its effects remain untested.

Massive Copyright Lawsuit Threatens to Monopolize Reggaeton Music

/ Washington Journal of Law, Technology & Arts / Leave a comment

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.