May 31, 2024 Musicology 2 Comments

Music copyright continues to have the problem of asymmetric risk borne by defendants against copyright infringement claims that I’d politely characterize as far-fetched, and therefore to some extent incentivizes them, both of which fly in the face of copyright’s purpose; to promote creativity so the world can enjoy its fruits. This case is just the latest example, but as Grandma would say, it’s a pip.

The defendants are Bad Bunny, J Balvin, Daddy Yankee, and practically every star in Reggaeton music because the basic rhythm that characterizes Reggaeton is traced back to Jamaican producers Cleveland Browne and the late Wycliffe Johnson, better known as Steely & Clevie. The 58 defendants, according to the plaintiffs, all infringed on their 1989 track “Fish Market” and its rhythm, also a component in their collaboration with Shabba Ranks for the huge dancehall hit “Dem Bow,” and in an instrumental derived from “Dem Bow” called “Pounder Riddim.”

Here’s Steely and Clevie’s “Fish Market.”

“Fish Market” by Steely & Clevie

According to the plaintiffs, and Variety, you might have listened for, “a programmed kick, snare, and hi-hat playing a one bar pattern; percussion instruments, including a tambourine playing through the entire bar, a synthesized ‘tom’ playing on beats one and three, and timbales that play a roll at the end of every second bar and free improvisation over the pattern for the duration of the song; and a synthesized Bb (b-flat) bass note on beats one and three of each bar, which follows the aforementioned synthesized ‘tom’ pattern.”

A lot of words. I gotta tip my hat.

Musicologize readers know I’ve already looked at this quite a bit, though not exhaustively and certainly not on a song-by-song basis. There may be some instances of unlicensed sampling among the nearly 2000 listed songs. “Sampling” has a specific meaning and there’s no amount of unauthorized sampling that’s necessarily trivial. It was unclear which songs were accused of exactly what offense.

I’m disappointed.

It was perhaps too much to ask, but I expected that Judge Andre Birotte Jr. might’ve looked across the cases of “Dark Horse,” “Stairway To Heaven,” “Blurred Lines,” and “Thinking Out Loud,” and said, “We don’t need to let every case survive summary judgment, causing invariably big deep pocket having targets to bear the burden of defending themselves, along with the down-the-road risk associated with the chance of bad judgments, and worst of all incentivizing future poorly premised complaints.” Okay, well, that’s not how it went.

This case, no more plausible than those other famous cases, has been hibernating for much longer than I expected, since motions to dismiss were filed around Halloween. In filings and across a two hour hearing I thought defense attorneys explained quite persuasively that the drum elements in “Fish Market” are both too basic and too simple to be very protectable. I also think it’s almost certainly true (again it’s a LOT of songs) that those elements are found neither sufficiently nor precisely enough in the defendants’ works to be found to be infringing. These factors matter. The rhythm from “Fish Market” is unprotectable, or very nearly so, simply because it’s compositionally brief, basic, and ordinary. It’s not likely to be found significantly or “substantially” in another work by virtue of its being so unprotectable (convolution intended).

Is there an identical example among the, I think, 1800 or so that’s not a sample? (I haven’t seen one yet.) Is there even an audio sample to be found anywhere at all? The complaint was so vague.

The decision to NOT toss this out is a thorough 40 pages long. The first 26 are lawyer stuff; I have no complaints and who should care if I did? I am not a lawyer. But on page 27, we arrive at what we do around here — that the plaintiffs must sufficiently allege the copying of elements that were original to “Fish Market” and are protectable by copyright. And I’d add, “enough that anyone should care.” What will these last thirteen pages say? I can hardly fathom. I’m that surprised.

First, the decision considers “access.” You can’t copy what you’ve never heard. “Fish Market” and “Dem Bow” were huge. Everyone had access. Boom. So far so good. Moving on…

As I said, I sympathize with the defendants from the jump in part because the complaint sued practically everyone and every song in the genre for sampling or plagiarising Fish Market or one of Fish Market’s kids, Dem Bow and Pounder but did not provide much specificity around which one or both it accused particular defendants or songs of committing, nor of which specific protectable elements in “Fish Market” the defendants copied. And here the court seems to say that’s fine. The ruling is that “the notice-pleading standard does not require Plaintiffs to plead specific details about every instance of infringement. A complaint can identify representative acts of infringement instead of providing an exhaustive list.”

But “sampling,” “interpolation,” and compositional copying are distinct and subject to different analyses. As I read it, the court says, “You’re all accused of either sampling the audio, copying the composition, or both, and since sampling comprises copying, that’s that. You’re all stuck here either way.” And yeah, but they’re still not equivalent. If I sampled, that puts me in a much less complicated class at this stage. But if I didn’t sample let’s take a good look at the extrinsic test (forensic musicologist stuff) unique to our pair of works, in this stage, and I expect then to get my non-infringing client out of here in a timely fashion.

Oh, but that likely means the plaintiffs won’t get any favors on the substantial similarity arguments either. Crap. Here goes…

Motion to dismiss rulings always cite Feist and the minimal degree of creativity required for a work to be “original.” But the originality of the whole is not the same as the originality of the parts. Sure “Fish Market” is original and protected by copyright, but its four-on-the-floor kick drum is not. It’s identical hi- hat is not. And so forth. It’s not even that “you can’t copyright a rhythm,” as is often said. It’s more that you almost can’t, and certainly not this one. It’s far too simple, too brief, too basic, quintessentially a building block, even as a combination in some selection and arrangement argument. If someone sampled your record, that’s one thing. But compositionally, this ruling considers Gaye and Swirsky; that music is comprised of “a large array of elements, some combination of which is protectable,” and those elements might be “melody, harmony, rhythm, timbre, structure, instrumentation, meter, tempo, and lyrics,” helpful when you’re trying to build a selection and arrangement argument because suddenly a very simple beat has all these separately listed elements. It’s not just a “thump thump thump thump” on a bass drum. Now it’s a rhythm, an instrumentation, a timbre. And in this case, it might also include the rarely encountered one-note harmony. It’s a preposterous stretch. There’s rhythm, but it’s basic. There’s instrumentation, but it’s standard. There’s timbre, but it’s from the low-bit drum machines of the time. There’s no harmony; just a drum machine playing a tuned tom at regular intervals; the sort of thing that made your trunk Kicker go BOOOONG when you pulled up alongside a senior citizen at the light.

Here’s one I think I’d concede: At least one of the motions to dismiss argued that the “Dem Bow” rhythm constitutes scènes à faire. Which it is, but I still agree with the judge here. This is not Daddy Yankee suing Bad Bunny for stealing these basic rhythmic elements that reggaeton more or less requires. Here we have a plaintiff claiming to be the one true originator. You can’t penalize them for being at the top of the ancestral chart. That would be as the judge says, “a double-edged sword.”

But the next logic eludes me:

“Moving Defendants claim that the musical elements are commonplace in a genre in which the Subject Works do not belong to. Genre or “a genre’s tradition” may be relevant in determining the compositional significance or protectability of the alleged musical elements at issue here.”

Case 2:21-cv-02840-AB-AJR Document 421
(I don’t know how to properly cite this.)

This might be probative of copying here and there, but it’s not a helpful parameter around compositional significance or protectability. Scènes à faire as a specific argument may involve genre boundaries, but compositional originality, significance, and protectability mostly won’t. When I say the basic rhythm in Reggaeton is a lot like a tango or tresillo or clavé, I won’t be moved from that square with “But it’s new and original to this genre which is now completely taking over the world.” Wherever it goes, it’s still kinda gonna be a tango, and therefore not very new and original. And so, this first quote I saw jumping into the news articles from this decision doesn’t make sense to me.

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

Still don’t know how to properly cite this. It’s here.

In this context, a brief simple rhythm, I don’t see how it makes much difference.

Who wants to see Al Pacino dance and forget about that time he failed to say “And the Oscar goes to?” Good call. Me too.

And since most of the components in the “Fish Market” rhythm are a tango, when I take away those elements, (this would be the abstraction, filtration, and comparison step of which in many cases I’m not entirely the biggest fan) what remains of the elements shared by both “Fish Market” and any of the couple of thousand or so defendants’ works, will not be “numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Smith v. Weeknd, No. CV 19-2507 PA (MRWx), 2020 WL 4932074, at *7 (C.D. Cal. July 22, 2020).

Last to go in the ruling, that the argument “Fish Market” elements existed in prior art is “premature at this stage” and from Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1109 (9th Cir.1970) “the originality necessary to support a copyright merely calls for independent creation, not
novelty.” Another surprise. Now not only is independent creation regardless of prior art a defense but its presumption also preserves your claim that someone has infringed your work?

I’m tired, but I don’t get that.

I remain disappointed and returning to where I began. Giving cases like this oxygen unfortunately has to encourage other dumbass cases. I love what I do, but I don’t want to work on these sorts of things. It doesn’t matter that the Swift’s and Sheeran’s can afford the settlements or the trials, the bad incentives are exactly the sort of thing the law and the courts should strive to fix. Perhaps this wasn’t the unimpeachable opportunity I think it was. What do you think?

Written by Brian McBrearty