Can a beat that underlies an entire genre of music become the basis of a copyright infringement claim? 

A recent case raising this question about reggaeton music has taken a small step forward – not toward a definite answer, but toward further exploration of a question that could render many songs and artists in infringement if the plaintiffs win.

It All Comes Back to Steely & Clevie

The case centers around the musical creations of plaintiffs Wycliffe Johnson (“Steely”) and Cleveland Brown (“Clevie”), who recorded as the reggae duo Steely & Clevie in the late ‘80s and early ‘90s. The pivotal work in question is the song “Fish Market” – specifically, the drum beat in this song. 

Its creators claim that their beat is at the heart of reggaeton, a genre that blends traditional reggae elements with Latin pop. Prominent artists include Bad Bunny, J Balvin, and Becky G. Even if you are not familiar,  if you have ever wandered a city music district at night, you have probably heard a distant reggaeton beat emanating from a club. 

Steely & Clevie’s “Fish Market” rhythm snaked its way into popular culture indirectly. In 1990, they collaborated with dancehall artist Shaba Ranks to create “Dem Bow” – then “Dennis the Menace” Halliburton used the rhythm in his own song “Pounder Riddim,” which was remixed into “Pounder Dub Mix II.” It is this last iteration that became sampled as the rhythm that backs so many modern reggaeton tracks.

Initially, Steely & Clevie filed multiple claims in multiple courts nationwide, but those have been consolidated into one claim with the Central District of California, where a district court judge recently ruled to allow the case to proceed. 

New Musical Copyright Frontiers

Perhaps part of the uncertainty for the defendants is how copyright cases in recent years have challenged the notion of what is protectable in music. We saw surprising claims and even more surprising verdicts in past cases brought against Ed Sheeran and Pharrell Williams. 

The former raised the harrowing question of how original pop music chord progressions need to be. Though Ed Sheeran was ultimately absolved; the latter held Pharrell Williams and Robin Thicke responsible for infringement based on a handful of notes in the song “Blurred Lines.”

Within this context, it is no longer a given that courts will easily side with the explanation that certain rhythms, progressions, or notes are “building blocks.” Do the many defendants need to sit up and start building a stronger argument? Or do the plaintiffs even have a case?

The Questions at Stake

If the case moves forward rather than being settled out of court, Steely & Clevie will need to prove these pivotal points to win an infringement claim:

• The rhythm clip of “Fish Market” – which is only a few songs long – is protectable. This means that they would need to show its originality. 
• In a similar vein, they would need to show that the rhythm does not constitute “scenes à faire,” an obligatory element of a creation that cannot be copyrighted, because it would shut out all other artists from being able to create in that medium or genre.
• That the copyright of “Fish Market” extends into the derivative works which ultimately birthed the defining rhythm of reggaeton.

For this particular chapter of the case, the stakes remain low. The defendants filed a motion to dismiss the plaintiff’s claims, and the judge denied the motion. This is not a statement on whether or not the infringement claims hold any validity. Rather, the judge is saying “We do not yet know enough to make a call.” 

Thus, the way is cleared for this question to be explored. Music creators, be alert. The answer that emerges down the road could have large consequences for reggaeton – and any music genre that relies heavily on sampling.