{"id":3232,"date":"2023-12-31T12:12:23","date_gmt":"2023-12-31T17:12:23","guid":{"rendered":"https:\/\/blogs.luc.edu\/ipbytes\/?p=3232"},"modified":"2024-07-16T03:59:29","modified_gmt":"2024-07-16T03:59:29","slug":"is-a-rhythm-copyrightable-bad-bunnys-unique-defense-to-copyright-infringement","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/ipbytes\/is-a-rhythm-copyrightable-bad-bunnys-unique-defense-to-copyright-infringement\/","title":{"rendered":"Is a Rhythm Copyrightable? Bad Bunny\u2019s Unique Defense to Copyright Infringement"},"content":{"rendered":"

A Massive Lawsuit Threatening the Reggaeton Genre <\/strong><\/p>\n

In 1989, Jamaican reggae duo Steely & Clevie<\/a> released \u201cFish Market<\/a>.\u201d Since reggae first hit the music scene<\/a> in the late 1960\u2019s, the genre was still highly impressionable. Soon after release, it became known as the first example of a \u201cdembow<\/a>\u201d rhythm\u00a0 – a sub-genre of reggae music distinguished by constant rhythm and faster beats per minute <\/a>. The main element of Dembow is its riddim<\/a>, a Jamaican term for rhythm which tends to be simple and repetitive.
\n
\nFlash forward to 2021, when Steely & Clevie filed a massive lawsuit against multiple defendants alleging copyright infringement of the riddim of their song \u201cFish Market.\u201d Steely & Clevie expanded the lawsuit in April 2023 to include nearly 170 artists, producers, and record labels for using elements of \u201cFish Market\u201d in over 1,800 songs. The plaintiffs allege that in each song, the artists interpolated and\/or sampled elements of \u201cFish Market\u2019s\u201d rhythm. The long list of defendants includes household names such as Luis Fonsi, Justin Bieber, Jason Derulo, Enrique Iglesias, Drake, and Bad Bunny.<\/p>\n

The defendants fear that this lawsuit will stifle creativity across multiple genres. Early reggae music, such as \u201cFish Market,\u201d influenced many follow-on genres, such as Reggaeton, Latin music, Hip-Hop, and Dancehall. Furthermore, defendants question whether the infringement claims concern copyrightable material<\/a> at all.<\/p>\n

What makes a song copyrightable <\/strong><\/p>\n

To obtain a copyright, a creative work must be original to the author and fixed in a tangible medium with minimal creativity. There cannot be any statutory bars<\/a> to the copyright, meaning that the copyright statute does not explicitly prohibit the copyright. For example, methods, ideas, facts, and processes cannot be copyrighted. In the music industry, musical compositions are considered to have protectable elements or \u201cunique works\u201d and non-protectable elements, or \u201cbuilding blocks.\u201d The melody and lyrics are unique works while harmony, rhythm, and arrangement are often considered building blocks of music and thus are not copyrightable. But a compilation<\/a> of uncopyrightable components may obtain a copyright if there is creative selection and arrangement of the uncopyrightable components. However, the author will only have a copyright in the compilation and not the component parts.<\/p>\n

To infringe on a valid copyright, a defendant must violate what are known as 106 rights<\/a>. Examples of violating a creative work include copying, distributing, preparing a derivative work<\/a>, or publicly displaying or performing the creative work, all without express permission or a license<\/a>. If Stevie & Cleive have a valid copyright in their riddim, the defendants likely infringe by copying and distributing \u201cFish Market\u201d. To understand whether this particular rhythm is copyrightable, it is important to understand the significance of a riddim in reggae music.<\/p>\n

The Nuances of Reggae Music <\/strong><\/p>\n

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“Reggae – Rare Music Video” by raremusicvideo1, \u00a0licensed under CC BY 2.0.<\/em><\/figcaption><\/figure>\n

Reggae music is known by its combination of riddims and vocals. Often, the same riddim is used in several different songs. The same riddim in reggae music can also be expressed differently, through the use of different combinations of instruments<\/a>. How the artist chooses to combine the riddim and voicing is what makes each reggae song unique. Particularly, the plaintiffs argue that \u201cFish Market\u201d contained an original drum pattern that differentiated it from prior works. \u00a0They argue \u201cFish Market\u201d contains a copyrightable composition through its programmed kick, snare, and hi-hat playing the base musical pattern, overlayed by percussion instruments including a tambourine, a synthesized beat, and timbales.<\/p>\n

Bad Bunny\u2019s Motion to Dismiss <\/strong><\/p>\n

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“Bad Bunny 2019 by Glenn Francis” by Toglenn is licensed under CC BY-SA 4.0.<\/em><\/figcaption><\/figure>\n

In September 2023, Bad Bunny filed a motion to dismiss<\/a>,<\/u><\/span> arguing that the musical elements in \u201cFish Market\u201d do not fall under copyright protection at all. He argued that the allegedly infringing elements including the rhythm, instrument choices, and parts of synthesized sounds<\/a> and timbre<\/a> \u00a0(both sound qualities common to reggae music) are the building blocks of several genres of music, and are not copyrightable. The clearly copyrightable elements of \u201cFish Market,\u201d such as the melody and the lyrics, are not included in Steely & Clevie\u2019s infringement claims.<\/p>\n

Bad Bunny asserts that the only elements of a musical composition that are protectable by copyright law are melody and instruments. In other words, while the actual musical notes and lyrics are protectable by copyright as a musical composition, the way an artist chooses to express<\/em> those notes and lyrics (such as through a choice of instrument) is not.<\/p>\n

Since Steely & Clevie do not allege infringement of melody or lyrics, all that remains is the rhythm resulting from the drum pattern<\/a> and minimalistic pattern bassline<\/a>. Bad Bunny\u2019s motion to dismiss cites to authorities holding that an evenly syncopated<\/a> rhythm is not a protectable element under copyright law.<\/p>\n

Bad Bunny also argues that even if \u201cFish Market\u2019s\u201d rhythm is considered a compilation of individually uncopyrightable elements, it does not have a valid copyright. Bad Bunny continued to argue that the selection and arrangement of the components of the rhythm in \u201cFish Market\u201d are not numerous or original enough to meet the minimal creativity component of a valid copyright.<\/p>\n

What Does This Mean for Other Music Genres?<\/strong><\/p>\n

Considering the significant influence of reggae music on multiple other genres of music, an outcome favoring Steely & Clevie could very well stifle creativity. Music is unique in that traditional genres tend to influence modern genres. Genres like R&B and Hip Hop wouldn\u2019t exist without jazz or bluegrass. If the rhythm or style of those traditional genres could obtain copyright protection, we might lack creative diversity in modern genres of music. Bad Bunny\u2019s motion to dismiss<\/a> employs this sentiment, stating that Steely & Clevie \u201cimpermissibly seek to monopolize practically the entire reggaeton music genre for themselves by claiming copyright ownership of certain legally irrelevant and\/or unprotectable purported musical composition elements.\u201d The plaintiffs\u2019 argument directly conflicts with one of the main policy goals of copyright law – \u00a0to encourage the creation of more copyrightable works.<\/p>\n

For a few reasons, I find myself drawn to Bad Bunny\u2019s motion. First, the strategy of suing hundreds of artists and over a thousand different works by asserting that Steely & Clevie\u2019s work is so \u201cgenre-defining\u201d and \u201ciconic\u201d might amount to sc\u00e9nes \u00e1 faire<\/a>. In the 1942 case Cain v. Universal Pictures<\/em>, the court defined the French term sc\u00e9nes \u00e1 faire as when a certain plotline in a genre is inherent in the situation itself. In the context of music, taking inspiration from other rhythms, such as using common chords, can also be considered inherent in the genre itself. Bad Bunny makes this argument as well, although it is a secondary part of the motion to dismiss. Second, a riddim should not be considered copyrightable because it would undermine the policy implications for creating more copyrightable works. A decision for Steely and Clevie would definitely stifle an entire genre, undermining the creativity copyright is intended to promote. For these policy reasons alone, I find Bad Bunny\u2019s motion compelling\u2014and for the future of sub-genres of reggae music, the court should as well.<\/p>\n

\"\"<\/p>\n

Elizabeth Schrieber<\/em>
\nAssociate Blogger<\/em>
\nLoyola University Chicago School of Law, J.D. 2025<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

A Massive Lawsuit Threatening the Reggaeton Genre In 1989, Jamaican reggae duo Steely & Clevie released \u201cFish Market.\u201d Since reggae first hit the music scene in the late 1960\u2019s, the genre was still highly impressionable. Soon after release, it became known as the first example of a \u201cdembow\u201d rhythm\u00a0 – a sub-genre of reggae music distinguished by constant rhythm and faster beats per minute . … Continue reading Is a Rhythm Copyrightable? Bad Bunny\u2019s Unique Defense to Copyright Infringement<\/span><\/a><\/p>\n","protected":false},"author":66,"featured_media":4029,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"class_list":["post-3232","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-copyrights"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/3232","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/users\/66"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/comments?post=3232"}],"version-history":[{"count":5,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/3232\/revisions"}],"predecessor-version":[{"id":4412,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/3232\/revisions\/4412"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media\/4029"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media?parent=3232"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/categories?post=3232"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/tags?post=3232"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}