Steely & Clevie Challenge Motions To Dismiss Reggaetón Lawsuit

Steely & Clevie Productions has firmly responded to five motions seeking to dismiss its massive copyright infringement lawsuit against nearly all of Reggaetón’s biggest stars, including Bad Bunny, Luis Fonsi, Daddy Yankee, Pitbull, Drake, and Justin Bieber.

In California court filings (1,2,3,4,5) on Thursday (August 3), obtained by DancehallMag, the Jamaican company insisted that its 1989 Fish Market riddim—widely sampled in the Reggaetón genre and internationally known as Dem Bow—is unique and original enough to merit protection under US copyright law.

Initially filed in 2021 but recently expanded in April 2023, the 228-page lawsuit alleged that nearly 170 artists, producers, and record labels infringed on their copyright by using elements from the riddim in over 1,800 songs released between 1995 and 2021.

The lawyers at Pryor Cashman LLP, representing the most number of Defendants in the matter—including Luis Fonsi, Justin Bieber, Daddy Yankee, Rauw Alejandro, Jason Derulo, Enrique Iglesias, and Ricky Martin—had argued in their motion to dismiss that Steely & Clevie were overreaching in their attempt to, according to them, monopolize “rhythm and other unprotectable musical elements” that are foundational to the Reggaeton genre.  

The sentiment was echoed in the four other motions to dismiss filed in June, with artists like Bad Bunny arguing that potentially copyrightable elements—such as melody and lyrics—were not included in Steely & Clevie’s complaint. The Puerto Rican rapper also cited precedent cases where “courts have been consistent in finding rhythm to be unprotectable.”

Canadian rapper Drake—also named in the suit for his songs One Dance with Wizkid and Kyla, and Mía with Bad Bunny—was among the Defendants who didn’t file a dismissal motion but co-signed Pryor Cashman’s arguments in a “motion to join.”

In Thursday’s court filings, Steely & Clevie pushed back, asserting that their Fish Market contains a unique and protectable combination of drums, percussion, and bass sounds.  According to them, this includes different types of drums like the kick drum, snare drum, ‘tom’ drum, and hi-hats; percussion instruments like timbales and tambourines; and a bass sound that plays specific notes in sync with some of the drums.  

“Bad Bunny’s motion boils down to a sensationalist, unsupported
suggestion that this case somehow ties up the Reggaetón genre. Not so. Bad Bunny could have created reggaetón songs featuring compositional elements and combinations that are nothing like Fish Market—and tellingly, he does not argue otherwise. For these reasons, his motion should be denied,” Steely & Clevie responded to Bad Bunny’s motion.

In another section of the response, the Jamaican company also contended: “Bad Bunny’s mischaracterization of Fish Market as just “rhythm” is absurd. He not only fails to define what he means by his use of the term “rhythm,” but also conflates the expression of particular “drum” and “bass” pattern with the idea of rhythm.”

In another filing, they also opposed Drake’s move to join Pryor Cashman’s motion to dismiss, emphasizing, among other things, that those arguments must be transferable for one party to join another’s arguments.  Drake’s request, they said, should be denied because it does not explain why Pryor Cashman’s arguments pertain to him.

The law firm Doniger/Burroughs is representing Cleveland ‘Clevie’ Browne, the estate of Wycliffe ‘Steely’ Johnson, who passed away in 2009 at 47, and the estate of Ephraim ‘Count Shelly’ Barrett, another influential Jamaican producer who died in 2020 at 88.   

In 1990, according to the lawsuit, producer Bobby ‘Digital’ Dixon and Steely & Clevie used the Fish Market beat from Gregory Peck’s Poco Man Jam—one of the original 1989 tracks on the riddim—for Shabba Ranks’ Dem Bow.

After the success of Dem Bow, Denis Halliburton, aka “Dennis the Menace,” and Count Shelly teamed up to create the Pounder riddim — a remake of Dem Bow’s instrumental, which was then used to record a Spanish language cover version of the song, titled Ellos Benia — and also an instrumental mix called Pounder Dub Mix II. 

Pounder Dub Mix II, Steely & Clevie claimed, “is substantially similar if not virtually identical to Fish Market” and “has been sampled widely in Reggaeton and is commonly known and referred to as the Pounder riddim.”

Pryor Cashman’s motion to dismiss in June 2023 had highlighted potential technical defects in the complaint, including those related to copyright registration of the early derivative versions of the Fish Market.

They contended that the Jamaicans’ claims could only extend to the Fish Market and the lyrics of Dem Bow, for which they have valid US copyright registrations, and that Steely & Clevie lacked copyright registrations for the Dem Bow sound recording, the Pounder riddim, and only secured registration for the Pounder Dub Mix II sound recording in March 2023, two years after filing the lawsuit.  U.S. law requires copyright registration before a suit is commenced, so the lawsuit should be dismissed, they argued.

In their response on Thursday, Steely & Clevie acknowledged that they obtained registration for the Pounder riddim after their initial complaint but before its most recent version in April 2023. They also clarified that their Dem Bow registration wasn’t solely for the lyrics, emphasizing a broader interpretation of copyright protection.

In a follow-up filing on Friday (August 4), Steely & Clevie submitted a “corrected version” of the Dem Bow registration “covering the entirety of the musical composition.” 

The stakes are very high.  The over 1,800 songs implicated in the lawsuit have garnered tens of billions of views on YouTube and many RIAA Platinum and Latin Platinum certifications in the United States. 

The list includes Luis Fonsi’s Despacito Remix with Justin Bieber and Daddy Yankee and his Échame La Culpa with Demi Lovato; El Chombo’s Dame Tu Cosita with Cutty Ranks; Daddy Yankee’s Dura, Rompe, Gasoline and Shaky Shaky; DJ Snake’s Taki Taki with Selena Gomez, Ozuna, Cardi B; and Pitbull’s We Are One (Ole Ola).

The Hon. André Birotte Jr., 56, a New Jersey native born to Haitian immigrants, is the federal judge handling the monumental case. 

He will decide to either grant or deny the motions to dismiss following hearings that are suggested to be held in September 2023.

Last year, a New York judge denied Ed Sheeran’s bid to dismiss the copyright lawsuit against him over claims that his song Thinking Out Loud had stolen harmonic chord progressions from Marvin Gaye’s Let’s Get It On. 

Pryor Cashman LLP, who represented Sheeran in that case, admitted that the songs had similar chord progressions but argued that the chords were generic and could be used by anyone.

In May 2023, a jury ultimately found Sheeran not liable for copyright infringement.