October 5, 2021 Musicology 10 Comments

Bad Bunny is being sued by BM Records, which controls the rights to a bunch of mixtapes from the 1990’s by DJ Playero. BM Records and DJ Playero get a lot of credit for the development of reggaeton. (Thanks a lot for that, by the way.) And they claim Bad Bunny’s hit Safaera contains material found in Playero 37 and “Playero Street Mix Vol. 2.” And specifically, the works “Besa Tu Cuerpo” and “Chocha Con Bicho,” and “Sigan Bailando.”

These are the recordings that “Safaera” supposedly “samples,” kinda, sorta; it depends upon which part of the complaint you’re reading. Not having this terminology straight drives me disproportionately nuts by the way. “Samples” are actual audio from prior recordings. “Sampling” is harvesting that audio. Does Safaera sample DJ Playero?

First, if you’ve never heard Bad Bunny’s “Safaera?” and care to, it’s this:

I hear samples in there, alright. If you listened to the whole thing, you probably heard at least one. But my piping hot take here: Let’s call it “better than a guess” since I’m not super familiar with DJ Playero.

No, he didn’t sample Playero!

So what’s going on here? With regard to the Playero material, there are a LOT of lyrics in common. I don’t speak Spanish, and I’m not (clears throat) a “poetry” expert, but I’d say it strains the imagination that it’s coincidental. Both mention the Chacón sisters (famous dancers) in precisely the same context, to name just one conspicuous similarity of which there are many. Several lines at a time from Playero’s lyrics appear in Safaera. And if the transcriptions in the complaint’s exhibits are accurate, and at a glance I’d say they probably are, then Bad Bunny might more appropriately be accused of interpolating the Playero material. Now let’s get OUR terminology straight.

An “interpolation” takes material from one work and performs it in another work. It’s like an intentional musical quotation. If you sing, “Took my chevy to the levy but the levy was dry,” in the middle of your song, nobody imagines you’re unaware you’ve copped Don McLean, we all know you did it on purpose. It’s not a “sample” however, unless you took the audio from McLean’s record and placed that audio in your new work.

Bad Bunny appears to have alluded to generous swaths of Playero lyrics, essentially presenting them in the same rhythms, and as the complaint mentioned, with many of the same notes. Though I think the complaint should probably might have referred to the sameness of the “melodic contour” rather than of the notes, as Bad Bunny employs different pitches a lot of the time, but with similar contour.

Melodic contour is the shape — the rising and falling of the notes in a melody, how the rises and falls occur over time, and at what slopes or steepness. If you can, imagine singing “Happy Birthday To You” but you’re a terrible singer, so the notes all a bit off but you still rise and fall at the same times, and to just a little different degree. You’d still have the same melodic contour — notes would rise and fall in the same way in both versions and both versions would be “Happy Birthday To You,” sorta, but they would contain lots of different note pitches.)

I think we may eventually arrive at the idea that Safaera interpolates Playero tracks.

But I don’t find any evidence of sampling. So every news article about this case has been at least a little bit wrong, I think.

Even the actual complaint against Bad Bunny reads:

Of importance to the instant action, “Safaera” includes at least four distinct uncleared samples of the Playero Works.

I don’t think so. Safaera contains samples, including that damned tumbi thing from Missy Elliot; I just don’t think any audio came from Playero. Please go ahead and change my mind.

The complaint, and way too many articles on the subject, mention “samples” and “sampling”. Still, I think the quote above is the only one in the complaint that accuses Bad Bunny of employing unlicensed audio. The rest of the time, it’s like they’re intentionally creating confusion. The way I read it, it paints Bad Bunny as having cleared several other samples for Safaera (implying that Bad Bunny knows about sample clearing!) and having to take the song down, briefly, while a clearance got sorted out (implying Bad Bunny’s been known to be a little careless about it). All of which could be directed toward substantiating an argument that Bad Bunny’s offenses are willful and therefore subject to higher statutory damages of — and this is what they’re asking for — up to 150k per offense.

But if Bad Bunny sampled anything from DJ Playero for Safaera, I haven’t found it yet. I admit I haven’t looked exhaustively. Again, what he seems to me to have done is interpolated Playero, and presumably without permission. You can still get sued for that, because you’ve infringed upon the rights to the composition, not the rights to the recording. So which rights do the plaintiffs in this case control? That’s an important question. I’ll have to look into that.

Written by Brian McBrearty