January 13, 2023 Musicology No Comments

Perhaps you’ve heard that you can’t copyright a groove. (Copyright isn’t really a verb, but everyone understands what you mean when you use it as one.) And on the heals of “you can’t” you might also hear, “but what about Blurred Lines?!” And yes, when the silly Blurred Lines case happened, it was said that it “accomplish(ed) what no one has before.” Did it though? Did Blurred Lines change everything? No. The more time that passes, the more aberration that verdict seems to be. So to the extent that you can’t copyright a groove, imagine how silly it would be if you could copyright a rhythm.

But there’s a lawsuit right now, or really one that is a bit like forty lawsuits stacked together; one plaintiff suing a very long list of artists and labels for sounding like, well, reggaeton.

Indeed, the plaintiffs (or their estates) may be reggaeton’s pioneers. Certainly, they’re on the short list. Here’s their “Fish Market,” the track most of this centers around.

Fine, let’s say they invented reggaeton. This lawsuit will still be silly.

Reggaeton, for better or worse, is simple. And whether simplicity is better or worse for music is a matter of taste and circumstance. That’s fine, put that aside; long live reggaeton and all the joy it brings. But copyright doesn’t protect simplicity nearly as readily as complexity because the complexity of observable similarity raises the probability of plagiarism. Simplicity lowers the probability of plagiarism.

Add to this that copyright wants to encourage creativity. And while it achieves this partly by protecting rights holders, it achieves it more by allowing creators to create a new original automobile design without having to reinvent the wheels. The wheel is a given, what you do with it is your creation. Rhythms are wheels.

So “Steely & Clevie’s” music being the basis of a massive consolidated lawsuit in which about forty defendants, including Justin Bieber, Pitbull, and Daddy Yankee, are being sued for infringing upon “Fish Market.” has the problem that one cannot ever enjoy a monopoly on a riddim. It mustn’t be allowed. It matters not that every reggaeton beat sounds similar to the one in their “Fish Market,” or in “Dem Bow,” which we’ll get to later. What they are talking about is just a beat, a simple and repetitive one, that isn’t even a groove. Maybe it has a bass part doing little other than play a bass note on one and three. It matters not that “Steely & Clevie” may have single-handedly ushered in a whole genre that now practically rules the world. That’s irrelevant. Rhythms (riddims), by and large, cannot and should not be protected by copyright.

There is nothing elitist about this. Simplicity isn’t bad. It’s just unoriginal. And it’s certainly not that rhythm isn’t the most important thing in music. Because it is.

Ask 100 musicians, good ones if you like, what’s paramount, harmony or rhythm? And my untested and unscientific opinion would be no fewer than 70 percent are going to say “rhythm.” Because Thou. Shalt. Groove. But rhythms on their own are not compositions, generally. Why “generally?” Only because nothing about music copyright should be binary, as long as music continues to be created. Possibilities are endless. Its just intellectually more honest to keep an open mind. Same with chord progressions; “generally” not protectable by copyright, but it has to be subject to considerations about length and novelty. There comes a point, if perhaps an impractical one. So let’s room for the possibility that any element of music, taken to some degree, might deserve protection.

But practicality here is appropriate! Spurious lawsuits are wasteful and waste is bad. So here’s a rule of thumb:

If your rhythm can be mouse-clicked into an eight-measures-long sixteenth-note grid on any drum machine interface designed in the past thirty years, that rhythm, regardless of which spots on the grid you or the software’s randomizing feature check or don’t check, is not yours alone and you cannot claim a monopoly. If there is a circumstance in which “filtering out that which is not protectable” is reliably valid in musicological analysis, this is it. Rhythms in general, and I dare say ANY rhythm that repeats every five seconds or so is a building block of music, public domain, and a foundation on which your protectable creativity will sit.

MUSICOLOGIZE

In the complaint, they notate the tracks that makeup “Fish Market.” It doesn’t really matter what the forty defendants’ works sound like because the following is evidently what they are trying to claim to own, and it’s not protectable expression.

Two of the tracks are identical, and they’re the simplest thing there could be. The hi-hat and kick just play “four on the floor.”

And then they add a low boom that plays every other note.

Their tambourine does what tambourines do, play sixteenth notes.

Add a snare drum (I’ll show it to you with the metronome so you can hear the 1-2-3-4 of it.)

So that’s five parts, none remotely distinctive to any percussionist who ever picked up a stick. Put all that together and you get this, a reggaeton track.

And then there’s “Fish Market’s” timbale part, four seconds long and not just a repeat of two seconds as was everything to this point.

With the four-second timbale part, all together, it would sound something like this:

Over and over.

So at first blush, this lawsuit appears to be that ridiculous, times about forty.

Written by Brian McBrearty