Back on July 7 I wrote that the Reggaeton case had survived again and nothing about it got better. Still standing by all of it and should say that yesterday something did get better. Judge André Birotte Jr. took back the part of the July order that punted the “Fish Market” protectability question to a jury and instead gave Bad Bunny and Rimas, and roughly everybody else, summary judgment on the plaintiffs’ selection and arrangement theory.
We’re not yet at, “the beat is unprotectable” and it isn’t “the elements are commonplace,” but it’s a judgment on the theory. It’s both less than it sounds and more. Congratulations to the Rimas defendants who said the court had failed to consider that no single copyrighted work contains the selection and arrangement the plaintiffs are trying to enforce, and the court, to its credit, said yeah, you’re right.
The plaintiffs own a few of the tracks that were foundational to reggaeton — the “Fish Market” composition and recording, the “Dem Bow” composition, and the “Pounder (Dub Mix II)” recording, but when they described what they put forth as protected expression, seven selected and arranged elements, they pointed at all three at once. If it’s not selected and arranged in any one work, that’s not selection and arrangement.
Then there’s this, which I’ve read about nine times now. This order says putting together a combination out of pieces of several works and calling the result the copyrighted work “is an attempt to create the asserted copyrighted work through the litigation itself.” I’m reading it over and over because it’s so gratifying. It at least begins to acknowledge what I’ve been insisting for months: that this “selection and arrangement” notion is more litigation than musicology; that nobody “selected” seven elements in Kingston in 1989. Plaintiffs selected them, a long time later, and the transcription in the complaint very much elaborates a beat into something different from what anybody made or for the most part makes one. Oft cited Skidmore says calling a bunch of scattered similarities a “combination” doesn’t turn your case into a selection and arrangement case, but it too oft does.
The court did not rule on the music and goes out of its way to say so. It didn’t decide whether the rhythmic elements are original, alone or together. The habanera over four on the floor still hasn’t been ruled on. Boom-ch-boom-chick belongs to no one, and so forth. We’ll get there eventually. This will go away. At this stage, the court says, the plaintiffs never told us what work their protectable selection and arrangement belongs to. It’s a step.
There’s plenty left to be sour about.
This is a consolidated action against dozens of defendants and however many thousand songs, and it was phased so the whole first act was about protectability, and the theory that sustained the first act just finally lost on summary judgment, upon reconsideration. I complain about the economics of such things where every pedantic ruling that keeps the show running moves some numbers a little further from what the music actually says.
Selection and arrangement is completely valid in copyright. Cite Swirsky, btw, for the idea that a combination of unprotectable things can be protectable, fine, it can. But there are all kinds of times in which it should not. This is bare minimum. It needs to be in a named work.
And now I wait for the next shoe. Doesn’t the infringement need to be in a named work too? This one I’ve been asking since 2023, and asked again in July. Show me the single most egregious example of “Fish Market” living inside another record and I’ll give it a fair look. Nobody ever has, seemingly because the question gets to the truth too fast for anyone’s taste. Judge Birotte has now asked the similar question that sat in front. Before you show me where the arrangement went, show me where it is. The order says the scope of a copyright can’t “remain fluid throughout litigation,” and I’d add that neither can the infringing work.
I unfortunately can’t stand behind everything. I was certainly wrong about how long this would take. I’m not wrong about the musicology.
Change my mind.
