The strongest force in the universe? No need to look it up; it’s Reggaeton.
Reggaeton is plenty strong, and reggaeton’s biggest star, Bad Bunny, has been, according to a recent article on this same subject in the Guardian, the most streamed artist globally on Spotify for three years now! If we look at the top ten songs in the world at any given time, we might expect to find that three or four of them are using some version of the reggaeton beat. It’s what’s working, and popular songwriting is more formulaic than ever, so it’s going to keep coming.
Unless a couple of the forefathers of Reggaeton, “Steely and Clevie,” get any real traction in a recently filed lawsuit that’s a bit like forty lawsuits stacked together, one plaintiff suing a very long list of artists and labels, including Reggaeton biggies like El Chombo, Luis Fonsi and Daddy Yankee, for interpolating “Fish Market’s” rhythm, which is to say, for sounding like reggaeton.
I’ve covered this lawsuit a bit already. Back in 1989, Steely and Clevie put out a record called Fish Market, and it contained a rhythm that came to be known as “DemBow.” “DemBow” is the drumbeat, or “riddim” you would beatbox if you tried to describe Reggaeton music to someone who’s been under a rock.
There are 56 allegedly infringing songs named in this lawsuit, all of which contain some version of this underlying beat that goes something like this:
But even if you accept that Fish Market is where reggaeton begins, this lawsuit should still go away. A rhythm such as this cannot be protected by copyright. Any traction this might gain leads right to total chaos. If we can sue over a simple element like this that happens to be common to countless songs, characteristic of a whole genre of music, things will go off the rails.
Rhythm is more foundational than any other musical element. The first day I stepped into a music class, I wasn’t yet four. And my teacher, who I somehow know to this day was named Susan, taught us a rhythm: two quarter notes, followed by two eight notes, followed by one quarter note. She made us clap along and say, “ta, ta, tee tee, ta.” That was the first lesson, before she introduced us to Mrs. Treble Clef and Mr. Bass Clef. Before pitch came rhythm.
“Ta ta tee-tee ta” is a simple rhythm, just one measure long, but it’s catchy, and the class repeated it over and over, and we were grooving. We might’ve performed that groove for nearly thirty seconds before Susan waved her arms for us to stop. Thirty seconds of music, but what song were we performing?
We weren’t performing any songs. We might’ve gone on like that all day, and we still wouldn’t have been performing a song. It was just a rhythm. We will overthink this now, but we really needn’t. It’s very much that simple. A rhythm is not a song, even though it sometimes seems like the rhythm from a famous song can stand on its own. The rhythm just isn’t enough.
“We Will Rock You,” is a song, with lyrics, melody, and a terrific guitar solo, but the “boom boom smack” that any arena full of hands and feet can stomp-stomp-clap for you is the most famous “We Will Rock You” element. The album began with that stomp stomp clap intro, We Will Rock You, and the song that followed it, We Are The Champions, were a package deal. Both were on the radio a ton, together. Brilliant. But also consider a song from Lady Gaga’s Born This Way album called “Yoü and I” which was pretty famous. It contains “We Will Rock You’s” boom boom clap rhythm, and you might not even have noticed. It doesn’t contain the song “We Will Rock You;” only its rhythm. The song is a thing that stands on its own, such that it could be adapted to another rhythm, style, or orchestration, and it would still be Yoü and I. It could be “Yoü and I,” just Gaga and a piano. It could be “Yoü and I,” just Gaga in the woods singing to herself.
I’ll cue it up so you hear the Queen rhythm. Gaga flips it around a little, but it’s unmistakable.
Far from the only famous rhythm that immediately calls to mind a song. Make your list.
But none of those familiar, easily identifiable rhythms are copyright-protected on their own. Society doesn’t want just one song to enjoy a great beat. “Roseanna” and “Fool In The Rain” are almost the same beat, and they’re offshoots of the Bernard Purdie Shuffle, and the Purdie Shuffle is his take on a classic half-time shuffle. If someone were able to copyright the first published shuffle, we wouldn’t have “Fool In The Rain,” “Roseanna,” or “Babylon Sisters.”
And rhythms aren’t drum parts, of course; they’re essential to every sort of musical expression. Take the basis of latin-american and afro cuban music, the clavé rhythm? The melody to Dua Lipa’s “Levitating,” sing it with me: “moon light. you’re my. star light.” is really just a two-note figure over and over, mostly on one pitch, and the groovy rhythm is a dotted eighth followed by a sixteenth, otherwise known as the first half (or the “3 side”) of the clave. You’re singing a clave rhythm. So was everyone who sang along as they danced The Charleston.
Could rhythm ever be a copyrightable musical work? I suppose, theoretically, yes. A rhythm, or a series of them, of sufficient originality should be a protectable work. But sufficient originality in a short repeating phrase, as a practical matter, is hard even to imagine. Originality involves novelty and length. Is the entirety of Neil Peart’s drums in Tom Sawyer, protectable? It is not a rhythm. It is a series of them, with a bunch of other elements, and I would certainly think a sufficiently original and protectable selection and arrangement of rhythms that themselves would not be protectable.
So where’s the line? Unsatisfyingly blurry though it might be, the line is at “what’s good for music and society.” As I often say, copyright is noble and seeks to encourage creativity for us all to enjoy.
But wherever the line is, it is nowhere near this, a couple of measures of DemBow. Rhythms, like familiar chord progressions, are common threads shared across whole styles of music, which help make the music relatable and fun. Society does not want every song to have a completely original novel rhythm; it wants to groove. It wants conventionality that it can readily relate to, with variations and spice supplying the compositional value atop the foundation.
Think back to that Dua Lipa Levitating chorus rhythm. That’s the clave applied to a melody. Was Franz Lizst thinking about a latin rhythm that would take over the world when he wrote the Hungarian Rhapsody almost 200 years ago?
I actually flipped things around a bit as Gaga did with We Will Rock You, but the point is, that rhythmic figure did not originate with Fish Market, and although the complaint breaks down the Fish Market beat into its components, with tambourines and timbales as separate elements in a “selection and arrangement” friendly array, Liszt’s simple and familiar melody is played in the rhythm that MOST characterizes Reggaeton. So if we filter out that element as unoriginal, I’d argue there’s nothing much left.
The defendants list is long, and perhaps some will settle. That’s their business. But the court needs to get this right. If a simple rhythm is a compositional element protectable by copyright, what is the TAM for Steely and Clevie? Copyright doesn’t want to set up that paradigm. What, then, would the TAM be for an endless list of innovative recording artists throughout popular music history who might’ve been the progenitors of some basic element that evolved into a style of music?
