July 4, 2023 Musicology No Comments

Although Bad Bunny is just one of about a gazillion named defendants, his recent motion to dismiss might spell the end of this entire “Fish Market” vs Reggaeton fiasco. And it could actually do a ton of good for music copyright in general.

Fisaco might not quite tell it.

If I were to post a list ranking the “ten worst music copyright cases of all time,” Musicologize would probably gain a lot of views, because lists tend to get shared and debated and have their own momentum. But I’d also make enemies, possibly of some current friends; so that isn’t going to happen. But I see no harm in saying this would very possibly top the list. Blurred Lines or one of the Arnistan cases from the early twentieth century would be in contention. But, it would probably be this Steely and Clevie case in which practically all reggaeton artists are listed as defendants for their alleged copying, interpolating, or sampling of “Fish Market” and/or “Dem Bow,” which went “boom, chi boom chick” before reggaeton became the most powerful force in the universe. They now endeavor to claim a degree of ownership over the whole shebang.

This notion, such as it is, boils down to the fact that reggaeton is characterized largely by a rhythm that appeared in Steely and Clevie’s 1989 recording, “Fish Market,” and so they might therefore be considered by some the progenitors of reggaeton. And here’s Steely and Clevie’s Fish Market, if you want to hear what we’re talking about.

And as for the Bad Bunny songs involved, you can pick nearly any of those, or really any reggaeton song at random. This case is silly, because the element central to their case is a rhythm, or “riddim,” a simple and brief one at that, and rhythm is not a protectable compositional element. Among the “worst cases ever” distinction we’re bestowing, all so obviously “wrong,” this one wins for chutzpah, scale, and in my estimation, bad form. It’s one thing for a plaintiff to have a crazy notion, it’s another to drag a hundred defendants into litigation, and it would be still another if Plan A was even partly the expectation that a non-zero share of the hundred defendants might simply settle such a nuisance, and then you’re playing with house money thereafter. And maybe that’s sound on some level, but when you have musicology so unfathomable as you have here (although a non-trivial amount of work was invested in it) one imagines potential alternative rationales.

The fact remains, you can’t copyright a simple rhythm. A simple rhythm is about as building-blocky as building blocks get. (That phrase must appeal to me; I saw a tweet today quoting me as having said the same thing on a podcast.) And this is indeed a simple rhythm.

“Boom-ch-boom-chick” surely did not originate with Steely and Clevie and IT WOULD NOT MATTER IF IT DID. Not in the least. Not even close. It is a preposterous notion. And since it is not original, and since not every one of these 100 reggaeton producers needs to know who Steely and Clevie are or what Fish Market is, there’s no available inference of copying. Since it’s not original or protectable, it would make no difference if there was copying even if intentional. Other listed features that might be present in Fish Market and which may occur here and there among the works of the 100 defendants such as the inclusion of timables or other instruments are presentational elements, not compositional ones, and as such, they are not the stuff of copyright.

A recent motion to dismiss from a particularly prominent defendant, Bad Bunny, is about as clear as we could want. Frankly, I could’ve told you it would be as soon as I saw Kenneth Freundlich’s name atop the filing. At the risk of putting words in his mouth, he argues pretty much what I have which should be enough to slam the door, but then he also closes all the windows by presuming the plaintiff’s responses and preemptively discrediting, for example, the tactic we saw in the Ed Sheeran Thinking Out Loud case — presenting a deconstructed infringement, a selection and arrangement of a list of unprotectable ideas. As I’ve remarked several times here, this is, not always but usually, bullshit, and would be here as well. I’d venture also to hypothesize that Freundlich was thinking of the Thinking Out Loud case when he preargued that since the only compositional element in question is the rhythm, the unprotectable compositional ideas number only one, there could be no arrangement at all. Regrettably though the judgement that allowed Sheeran’s case to reach the courtroom relied on the lack of a bright line rule that even so few as two such elements could not be sufficient to support a selection and arrangement claim. It was ridiculous, but the plaintiff went to court with two elements — a progression of four chords, and the rhythm in which that progression was played. Bad Bunny’s motion makes that an almost shameful thing for the judge to entertain. “While Plaintiffs might try to argue that “bass line” is an additional element — even though it is plainly part of unprotectable rhythm — that would be of no help to them since a bass line consisting of a “minimalistic pattern” is unprotectable in any event.” I’m afraid I can still easily imagine if the plaintiffs are given a judgement without prejudice that allows them to improve their complaint, they will do just that, deconstruct their rhythm to be a selection and arrangement of a drum rhythm and a bass part, each unprotectable on their own, and according to the logic that sent Thinking Out Loud to court might be sufficient to support a selection and arrangement claim where the lack of originality and protectability does not necessarily kill the argument, though here it should and elsewhere it has.

All of this presents a golden opportunity for a judgement that would advance the clarity around the structure of selection and arrangement claims. Bad Bunny argues that “Plaintiffs’
enumeration of the Subject Elements is replete with “choice[s] of particular
instrument[s]” to play various portion of the rhythm—such as “a programmed kick,
snare, and hi-hat playing a one bar pattern,” “percussion instruments, including a tambourine playing through the entire bar,” etc,” and then similarly dismisses other elements listed such as “synthesized sounds” and “timbre” as compositionally irrelevant, which in this case they certainly are. So, I would say Freundlich sees “selection and arrangment” much as I do, and is rolling out the red carpet to not only dismiss his client’s cases, but raise the standard for the way selection and arrangement is applied in music copyright.

Alternatively, the motion argues that by suing everyone, and by asserting that Steely and Clevies contributions are “genre-defining” and “iconic,” and by listing at least a hundred different works as the infringing works, the plaintiffs have argued for their own demise — that all of this is just scenes a faire which IS fatal to an infringement claim.

Allegedly a dozen or so of the defendants’ works contain samples too. That would be another matter entirely. Samples potentially infringe on both the copyright to the recording and the copyright to the underlying composition. I haven’t investigated whether some or any of the defendants works contain samples. My “this is silly” position refers only to the idea that any of these works copied protectable compositional expressions from Fish Market.

Written by Brian McBrearty