Music experts part ways after judge approves Steely and Clevie’s reggaetón lawsuit

Now that a US federal judge has cleared the way for Steely & Clevie Productions’ copyright lawsuit, expert testimony on musical elements is expected to play a crucial role in shaping the outcome.

The Jamaican company claims that more than 1,800 Reggaetón songs – including hits by Bad Bunny, Daddy Yankee, Luis Fonsi, Drake and Justin Bieber – infringed its laws. Fish market riddim, better known as “Dem Bow.” The crux of the matter is whether the genre’s ‘boom-ch-boom-chick’ percussion elements, which are fundamental to many Reggaetón songs, are protectable – a question DancehallMag recently posed for musicologists Brian McBrearty and Ewan Simpson.

McBrearty, a music copyright expert at Musicologize, said rhythm elements, especially “simple” elements like “dem bow,” are generally not very protectable.

“Rhythm elements in themselves are not very protectable to begin with. This one is both short and clear, which makes it fun, but it doesn’t really help make it protectable,” McBrearty explained.

He also questioned Steely & Clevie’s application of “selection and arrangement” in lawsuits, arguing that while copyright protection may exist for selection and arrangement, the “unprotectable elements” “must be sufficiently numerous and the selection and arrangement original enough to be protectable.”

In a ruling last month, Judge André Birotte Jr. refused. to dismiss the lawsuit, ruling that Steely & Clevie had sufficiently established the protectability of the drum pattern and compositional elements of the 1989 riddim. However, he postponed ruling on originality, citing the need for further evidence and expert testimony at trial.

Ewan Simpson, president of the Jamaica Reggae Industry Association (JaRIA), lawyer and ethnomusicologist, believes Judge Birotte made the right choice in allowing the case to proceed.

“This process will allow for proper ventilation and interrogation of some fundamental principles of intellectual property and could help dispel some long-held views about what can and cannot be copied,” he said. DancehallMag.

Contrary to McBrearty’s opinion, Simpson sees potential in the protectability of the rhythm.

“As a basic principle, rhythmic elements are usually not eligible for protection,” he noted. “However, if enough creativity can be identified so that the rhythmic composition is undeniably unique, it may be worthy of protection. I believe that this rhythm and its tonal interactions can rise to the level of originality to be protected.”

Both experts agree that the case could have far-reaching consequences.

McBrearty warned that a finding of compositional infringement could lead to “enormous confusion” between genres that rely heavily on rhythm, potentially forcing Reggaetón to “become something quite new.”

“It also helps to remember that the purpose of copyright is to promote creativity. We all want more music. To grant a monopoly on a basic rhythm would mean the opposite; it would limit creativity. So if you want more Reggaeton, be careful what you wish for here,” he added.

Simpson, meanwhile, believes the outcome could embolden the exploited creators and give the exploiters pause for thought.

“Lending has long been part of the evolution of music, but giving creators credit and reasonable compensation for their work is also a pillar of the industry that must be respected,” said Simpson.

When asked about the opportunities for Jamaican creators like Steely & Clevie or Sly & Robbie, who may not feel recognized for their contributions to genres like Reggaetón, McBrearty replied: “I hope there are many ways to be credited and recognized for influence and contributions. But influence certainly does not equal copyright, and a ruling of no liability would not mean less appreciation for their contributions.”

The more than 1,800 songs at issue in the lawsuit were released between 1995 and 2021. They have racked up tens of billions of views on YouTube and hold numerous RIAA Platinum and Latin Platinum certifications in the United States.

This includes Drake’s A dance with Wizkid and Kyla; Drake and Bad Bunny’s Mia; by Luis Fonsi Despacito remix with Justin Bieber and Daddy Yankee and his Echame La Culpa with Demi Lovato; from El Chombo Dame Tu Cosita with Cutty ranks; From daddy Yankee Dura, Hull, Gasoline and Shaky Shaky; DJ Snakes Taki Taki with Selena Gomez, Ozuna, Cardi B; Pit bulls We are one (Ole Ola); and more.

A similar case involving British singer Ed Sheeran provides insight into how expert testimony can influence copyright infringement lawsuits.

Sheeran’s Grammy Award-winning song Thinking out loud was accused of infringing on the Marvin Gaye classic Let’s get started. Music experts from both sides agreed that the songs had similar chord progressions. However, Sheeran’s experts argued that these elements were generic and universally available to all musicians. Despite Sheeran’s attempt to dismiss the case, the judge ruled that a jury should decide the similarities between the songs.

During the trial, Sheeran himself testified three times.

His attorney, Ilene Farkas, likened the shared chord progressions and rhythms to “the letters of the musical alphabet.” She argued: “These are fundamental musical building blocks that songwriters must be free to use now and forever, or we who love music will be poorer for it.” Keisha Rice, who represented the heirs of Gaye’s co-writer Ed Townsend, on the other hand, clarified that her clients did not claim ownership of basic musical elements. Instead, they demanded rights to “the manner in which these common elements were uniquely combined.”

In 2023, the jury ultimately found Sheeran not liable for copyright infringement, the Guardian reported.