It seems like ages ago, I said this Reggaeton case would go away swiftly. “This case will go away. Mark my words,” I wrote in my worst-cases list for 2023, back when Bad Bunny’s motion to dismiss should’ve been the end of it. I was wrong about the pace. Far later than I imagined this might go on, Judge André Birotte Jr. on July 2 denied summary judgment to both sides in the Steely & Clevie case and sent the question of whether the Dem Bow riddim is protectable expression to a jury.
Copyright cases have a more dramatic ratio of legal posturing to musicology in the early stages. And here, well down the road, nothing musical was decided except for the fact that the musical truths aren’t getting through the fog of untruths. Forty-four pages and not one element of “Fish Market” was found (ruled) protectable, nor one filtered out as unprotectable. Measure twice or even thrice and cut once? That usually sounds smart. But I don’t see how this merits more than a couple of quick and easy measurements unless there’s no such thing. So this forensic musicologist asks, “What are we doing here?” This court looked at the most thoroughly analyzed mere drumbeat (intentionally begging of me) in the history of copyright litigation, and we have yet another case where, if someone says “selection and arrangement,” I guess we’ll have to ask twelve reasonable laypersons. 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 gotta be a toss-up — not “guilty beyond a reasonable doubt,” or “everyone deserves their day in court,” but the inverse, where “everyone deserves a shot at dragging someone through court.”
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 Habanera before it was put to this not-necessarily original melody and became Habanera, 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 seven-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 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. And that’s what the process is concerned with at this stage. But the specificity here is everything. It’s just barely original, maybe, in its absolute entirety, such that, inverting it, 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, and that’s pretty standard, except here it’s terribly impractical. If the plaintiffs work has a modicum of protectability, shouldn’t there be a preponderance approaching 100% of its protectable expression in an identified defendant work?
Selection and arrangement is legit, but in practice has become mostly 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 or seven independent, even simpler musical elements where they look 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-in 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 devise better. We have a doctrine with no floor on what counts as an “element,” and thereby enables such element-count inflation; an economics where defense costs too often 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. It’s a seductive indulgence, but there’s no intellectual currency or fairness inherent in both-sides-ing everything when a simple explanation will suffice. Toss-ups feel noble and just, but indulgence comes at a cost, so it’s lazy here.
Credit where it’s due, the order gets one thing 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; that personal impressions untethered to any testable or reproducible process, are not a methodology.
Great, but it got something terribly wrong, as so many others have and will. And that’s why it’s a Musicologize refrain.
Yet another ridiculous case got past a gate, from which we deserve better!
Your. Best. Shot.
Back to my main gripe. Years ago, Musicologize asked, publicly, for anyone to bring their single most egregious example of “Fish Market” living inside another song, their best shot, and I promised it a fair look. Nobody ever took me up on it.
If you’re going to sustain a case past summary judgment on the originality and protectability of a riddim, which is razor thin to start, and then ultimately prop it up with “you can’t find it exactly this way in the prior art,” here’s the argument you invite but weren’t hit with:
A search that comes back empty isn’t proof the prior art isn’t there, firstly. (Absence of evidence/evidence of absence, and all that.) Grant all of it anyway because it isn’t the question that matters — not on its own, at least. Razor thin cuts both ways, so ask, “Since the thing is barely protectable, and only the nearly identical can infringe it, don’t just ask me where the prior art is. Show us where the hence art is!” Name the single most egregious example of Fish Market’s supposed “selection and arrangement” living inside another record. It’s exactly what I’ve asked for because it’s the test that gets us efficiently to the truth. And it will never come.
No one is going to care about lesser similarities to a rhythm with no better than plausible protectability at all. And indulgence costs, so shouldn’t we be asking, “Would one sue a genre when they hold one virtually identical copy from an international superstar? Or does one sue a genre because you hold none, and you’ve bet that volume, a willing expert, and the cost of defense will manufacture what a single honest comparison never could?”
And the answer is to ask the question. Plaintiffs are invariably sincere. They believe they’ve been infringed. We sympathize when they’re delusional. But we can’t indulge it beyond a point because that’s not just. So shouldn’t we have cut to the chase and said, “What’s your best shot?!”
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.
Related: Another Suno Case Without a “Song B” In It · Baby step in the right direction for the Reggaeton Case
