I said this case would go away, and it will, eventually. “Mark my words,” I wrote, back when Bad Bunny’s motion to dismiss should’ve been the end of it. Consider them marked, I guess. On July 2, Judge André Birotte Jr. denied summary judgment to both ::eyeroll:: sides in the Steely & Clevie case, ruled on eight Daubert motions, and sent the question of whether the Dem Bow riddim is protectable expression toward a jury. I was wrong about the pace. I have never been more right about the problem.
Here is what you might not get from scanning the press coverage. Nothing musical was decided except, perhaps, that the musical truths aren’t getting across. Forty-four pages and not one element of “Fish Market” was found protectable, and not one was filtered out! The court looked at the most thoroughly analyzed drumbeat in the history of copyright litigation and said, in effect, you’ll have to ask twelve reasonable layfolks. That’s not a ruling on the music or the complexity thereof (there’s none). That’s a ruling that we’ve built a system where rulings on extrinsic facts are too scary and everything’s a toss-up.
Quick orientation for newer readers. Infringement is a three-legged stool: access, similarity, originality. This case was phased so that the whole first act is about the third leg only. Is the “Fish Market” rhythm, the boom-ch-boom-chick that runs under practically all of reggaeton, original and protectable expression in the first place? Everything else, substantial similarity across the accused catalog (which is thousands of songs, and the consolidated complaints themselves list dozens), access, damages, all of it awaits. So when a judge declines to answer the protectability question on summary judgment, the whole production stays in business. Every defendant keeps paying counsel. Every settlement calculation shifts a little further from the musical truth, tantamount to right and wrong, and a little closer to some risk discounting model akin to someone hoping, moved up a rank, you’ll just pay the ransom.
Occam’s razor would have that the simplest explanation is usually the right one. Hanlon’s, that we shouldn’t attribute to copying what coincidence explains just as well. Both cut against gathering up individually unremarkable similarities and insisting their number does the work their substance doesn’t. Mundane observations don’t magically accumulate to become significant.
One simple musical truth in this case explains everything adequately and should foreclose on all else.
It’s this…
The fundamental rhythm in “Fish Market” is a habanera pattern over a four-on-the-floor kick. The latter is just boom-boom-boom-boom. Do we need to discuss the mundanity of that rhythm? No? Great. Moving on. If “habanera” rings a bell, it’s the rhythm under the famous aria from Carmen.
Bizet didn’t invent it. It was a rhythm called Habenera before it was put to this not-necessarily original melody and became Habenera, the showstopper aria in Carmen, which is itself about 150 years old.
Take the rhythm of that underlying bassline from Carmen, speed it up just a little, and you have the heart of the rhythm that Reggaeton relies upon the way other musical styles rely on their respective completely unprotectable rhythms.
The plaintiffs claim a six-part combination including toms, hi-hat, tambourine, timbales, and bass. But it all works the way a simple drumbeat does, a few things together, and few omitted. The toms are just layered with the kick (the bass drum) on the odd beats. The high hat taps along. A bass note plays on the odd beats too. And why keep going?? I invite anyone to refute it with something other than a list of additional elements that are equally unprotectable, like what instruments are involved, as though I can’t play a reggaeton beat sitting here with feet and hands at my desk.
A modicum of originality renders the plaintiff’s works original and protectable. But the specificity there is everything. It’s just barely original in its absolute entirety, such that nobody should be suing the plaintiffs over it. And yet, nothing “about” their rhythm is original or protectable. So every element we might find in common in other works is insignificant toward an inference of copying and unlawful appropriation.
But this phase doesn’t care. Because the plaintiffs’ whole case runs on a doctrine called selection and arrangement, and selection and arrangement has become a useful con.
Here’s the trick, step by step. Start with one beat that any musicologist worth their salt would call a building block. Write it out on several staves so that one simple repeating rhythm photographs like six independent even more simple musical elements where they look like more like contributions than duplications. Pay lip service to the production while you’re at it; the drum machine sound you selected, the mix; grow that supposed element count. Then cite the case law saying a combination of unprotectable elements can be protectable, which is true, the way it’s true that a pile of bricks and columns and windows can be architecture. And then the finisher: assert the backward logic that unless someone has recorded all of your gerrymandered elements at once, declare the combination “selected” and “arranged.”
It’s circular and begging as the day is long. Steely and Clevie made a beat. The semantics are silly. Nobody selected six elements. It’s more reasonable to say the lawyers selected six elements, decades later, an elaboration of the transcription than a description of the beat’s creation.
Collapse the doublings, filter the building blocks, then show me what selection remains. In “Fish Market,” the remainder is a kick-snare pattern with a name and a couple feathered remaining percussion events. There’s no way we should still be talking about whether boom-ch-boom-chick belongs to two producers from Kingston.
We’ll need to get better. A doctrine with no floor on what counts as an “element” enables such element-count inflation. An economics where defense costs dwarf nuisance settlements. A summary judgment culture in which any expert-supported assertion creates a triable fact. Incentives pointing in the same direction, with no musical sense involved. There’s no intellectual currency or fairness inherent in both-sides-ing everything when a simple explanation will suffice. Toss-ups aren’t on their own noble or just.
Credit where it’s due, the order gets one thing gloriously right, and it’s worth the price of admission for working musicologists. The creators themselves offered opinions that their work was original, as experts. The court said no. A creator can testify that he didn’t copy, that’s fact, he was there. He cannot extrapolate from being there into an expert conclusion that no prior art exists, especially not with a financial stake in the answer. Personal impressions, the court wrote, untethered to any testable or reproducible process, are not a methodology. Frame that. It’s the whole argument for forensic musicology, in a federal order, at nobody’s request.
Years ago I asked the plaintiffs, publicly, to bring me their single most egregious example of “Fish Market” living inside another song, their best shot, and I promised it a fair hearing. Nobody ever took me up on it. Fine. When the trial finally forces the question the summary judgment wouldn’t answer, the answer is still the one I gave in 2023. You almost can’t copyright a rhythm. Certainly not this one.
Change my mind.
