LOS ANGELES (CN) — Dozens of reggaeton artists, including global stars such as Bad Bunny and J Balvin, must face allegations that the popular music genre is based on illegal copying or sampling of an instrumental percussion track created by two Jamaican producers in 1989.
U.S. District Judge André Birotte Jr., in an order dated Tuesday, denied most of the motions to dismiss the consolidated lawsuit brought by Cleveland Browne and the estate of the late Wycliffe Johnson, who under the name Steely & Clevie recorded "Fish Market."
They claim that the very recognizable drum pattern of "Fish Market" was used in their 1990 collaboration with dancehall artist Shaba Ranks for the "Dem Bow" (meaning "they bow") hit, which gave it its "dembow riddim" monicker. The same year, "Dennis the Menace" Halliburton incorporated the pattern in his "Pounder Riddim" recording.
The subsequent "Pounder Dub Mix II" version of that track was sampled or copied "mathematically" by numerous reggaeton artists in recent years, according to the plaintiffs.
The judge rejected the defendants' argument that the Jamaican producers can't sue them for infringing "Pounder Riddim," because they don't own the copyright to that track, or for infringing "Pounder Dub Mix II," because they only registered a copyright to that track after they filed their lawsuit.
Since a judge doesn't rule on the merits of a case when considering motions to dismiss a lawsuit but will draw all reasonable inferences in favor of the plaintiffs to determine if they have a legally valid claim, it is plausible that "Fish Market" is the progenitor of these derivative works and that these works all capture original elements of "Fish Market," Birotte said.
"While it does not follow that a defendant inevitably infringes the 'Fish Market' copyright because the defendant allegedly copied 'Dem Bow,' 'Pounder Riddim,' or 'Pounder Dub Mix II,' the copying of material derived from protected elements of 'Fish Market' will constitute an infringement of the 'Fish Market' copyright regardless of whether the defendant copied directly from 'Fish Market' or indirectly through a derivative work," the judge said.
As for the late registration of the "Pounder Dub Mix II" copyright, the judge concluded that the case presented "a narrow circumstance" that could excuse the plaintiffs' failure to register it before they sued. In any case, since the producers would just need to file a new lawsuit if he were to dismiss the infringement claims over "Pounder Dub Mix II," it would be a waste of judicial resources to cut those claims at this stage, he said.
The judge also wasn't persuaded that the lawsuit wasn't sufficiently specific about the details of how the 100 or so defendants in about 1,000 tracks infringed "Fish Market" or the derivative works.
Likewise, he declined to find that the percussion pattern of "Fish Market" and the derivative works wasn't sufficiently original to warrant copyright protection. It's too early to decide that question, according to judge's order, as a determination would require more evidence and expert testimony.
For the same reason, Birotte said it's too soon to decide whether the dembow rhythm constitutes "scenes a faire," or an obligatory element of the reggaeton genre, and as such isn't protectable under copyright law.
"The court is unprepared at this stage to examine the history of the reggaeton and dancehall genres and dissect the genres’ features to determine whether the elements common between the allegedly infringing works and the subject works are commonplace, and thus unprotectable, as a matter of law," the judge said.
"Our clients are pleased to have overcome these motions and look forward to proving their case in court," said Scott Burroughs, an attorney for Browne and the Johnson estate.
Attorneys for the reggaeton artists and their record labels didn't immediately respond to requests for comment Wednesday evening.
The judge agreed to dismiss the additional claims of contributory and vicarious infringement, according to which the artists and record labels contributed to third parties infringement or failed to stop it. The Jamaican producers' claims weren't specific enough under the law to proceed, Birotte said, but he allowed them to amend their complaint to address that issue.
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