Music experts divided after judge clears Steely & Clevie’s reggaetón lawsuit

After a US federal judge cleared the way for the trial in the Steely & Clevie Productions copyright dispute, it can be assumed that expert testimony on musical elements will play a decisive role in the outcome.

The Jamaican company claims that over 1,800 reggaeton songs – including hits by Bad Bunny, Daddy Yankee, Luis Fonsi, Drake and Justin Bieber – have been traded against their fish market Riddim, better known as “Dem Bow”. At the heart of the case is the question of whether the “boom-ch-boom-chick” percussion elements that are fundamental to many reggaetón tracks are protectable – a question DancehallMag recently spoke to musicologists Brian McBrearty and Ewan Simpson.

McBrearty, a music copyright expert at Musicologize, said rhythm elements, especially “simple” ones like “the bow,” are generally not very protectable.

“Elements of rhythm alone are not particularly worthy of protection in the first place. This one is short and straightforward, and that makes it partly entertaining, but it doesn't necessarily make it worthy of protection,” McBrearty explained.

Forensic musicologist, music theorist and author Brian McBrearty

He also questioned Steely & Clevie's application of the “selection and arrangement” principle in court filings, arguing that while selection and arrangement may be eligible for copyright protection, the “unprotectable elements” must be “numerous enough and their selection and arrangement sufficiently original to be protectable.”

In a ruling last month, Judge André Birotte Jr. refused to dismiss the lawsuit, saying Steely & Clevie had sufficiently demonstrated the protectability of the drum pattern and compositional elements of the 1989 riddim. However, he deferred a decision on originality, citing the need for further evidence and expert testimony at trial.

Ewan Simpson, chairman of the Jamaica Reggae Industry Association (JaRIA), lawyer and ethnomusicologist, is convinced that Judge Birotte made the right decision by allowing the proceedings to proceed.

“This process will allow for proper discussion and questioning of some fundamental principles of intellectual property and could help to dispel some long-held ideas about what can and cannot be copied,” he said. DancehallMag.

In contrast to McBrearty's view, Simpson sees potential in the protective ability of rhythm.

Ewan Simpson-2Ewan Simpson-2
Ewan Simpson, Chairman of the Jamaica Reggae Industry Association (JaRIA)

“Rhythmic elements are generally not considered for protection,” he noted. “However, if sufficient creativity can be identified so that the rhythmic composition is unmistakably unique, it may well be worthy of protection. I believe that this rhythm and its tonal interplay could reach a level of originality that is worthy of protection.”

Both experts agree that the case could have far-reaching consequences.

McBrearty warned that identifying a compositional violation could lead to “tremendous confusion” between genres that rely heavily on rhythm, and potentially force reggaetón to “become something quite new.”

“It also helps to remember that the purpose of copyright is to encourage creativity. We all want more music. Granting a monopoly on a basic rhythm would do the opposite; it would limit creativity. So if you want more reggaeton, be careful what you wish for,” he added.

Simpson, meanwhile, believes the result could encourage exploited creators and make exploiters think again.

“Renting material has long been a part of the evolution of music, but giving creators recognition and fair compensation for their work is also a pillar of the industry that should be respected,” Simpson said.

When asked about legal remedies for Jamaican artists such as Steely & Clevie or Sly & Robbie who feel unrecognized for their contributions to genres such as reggaetón, McBrearty replied: “I hope there are many ways to get credit for influence and contributions. But influence is certainly not synonymous with copyright, and a decision not to accept liability does not mean that their contributions are any less valued.”

The more than 1,800 songs at issue in the lawsuit were released between 1995 and 2021. They have been viewed tens of billions of times on YouTube and have been awarded multiple RIAA platinum and Latin platinum certifications in the United States.

These include Drakes A dance with Wizkid and Kyla; Drake and Bad Bunny's Mía; Luis Fonseca Despacito Remix with Justin Bieber and Daddy Yankee and his La Culpa (The Sin) with Demi Lovato; El Chombos Lady Tu Cosita with Cutty Ranks; Daddy Yankee's Dura, Rompe, Benzin and Shaky Shaky; DJ Snakes Taki, Taki – The wonderful world of madness with Selena Gomez, Ozuna, Cardi B; Pitbulls We are one (Ole Ola); and more.

A similar case involving British singer Ed Sheeran provides insight into how expert testimony can lead to success in copyright infringement lawsuits.

Sheeran's Grammy-winning song Thinking out loud was accused of violating Marvin Gaye's classic Let's get started. Music experts on both sides agreed that the songs had similar chord progressions. However, Sheeran's experts argued that these elements were common and universally available to all musicians. Despite Sheeran's attempt to dismiss the lawsuit, the judge ruled that a jury should decide on the similarities of the songs.

During the trial, Sheeran himself testified three times.

His attorney, Ilene Farkas, compared the shared chord progressions and rhythms to “the letters of the alphabet of music.” She argued, “These are fundamental musical building blocks that songwriters must be free to use now and forever, or all of us who love music will be poorer for it.” In contrast, Keisha Rice, who represents the heirs of Gaye's co-writer Ed Townsend, clarified that her clients were not claiming ownership of fundamental musical elements. Instead, they were claiming rights to “the manner in which these shared elements were combined in a unique way.”

In 2023, the jury finally found Sheeran not liable, the Guardian reported.