Haitian-American Judge André Birotte Jr., who revealed on Friday that he worked as a party DJ while in college, has questions about whether Steely & Clevie Productions Ltd’s massive copyright infringement lawsuit could hamper creativity in not just Reggaetón, but also Reggae, Hip-Hop and other genres.
Birotte, 57, raised concern about the lawsuit’s potential impact on popular music during a two-hour hearing on motions to dismiss the case, held in a California courtroom on October 20.
“What’s the end game? Does this lawsuit run the risk of arguably stifling creativity?… Look at the ripple effect this style has had on Reggae, Reggaetón, Latin music, Hip-Hop, you name it. Does this stifle the creativity of all of those genres?” he asked the parties.
In response, Scott Burroughs, the lead lawyer for Cleveland “Clevie” Browne and the estates of the late Wycliffe “Steely” Johnson and Ephraim “Count Shelly” Barrett, argued that his clients deserved credit and compensation for the allegedly unlawful use of the Fish Market and “Pounder” riddims, which inspired the “style” internationally known as “Dem Bow.”
“Maybe we do need a reckoning,” Burroughs said. According to Rolling Stone, he claimed that many defendants had no problem clearing samples from other artists, so why should his clients be “left out in the cold.”
The lawsuit consolidates three related cases filed in 2021, and was expanded further in a 228-page complaint filed in April, naming over 160 artists, producers, record labels, and more than 1,800 songs as having used elements from Fish Market without permission. In June, several defendants, including Bad Bunny, Daddy Yankee, Luis Fonsi, Justin Bieber, Drake, Pitbull, Rauw Alejandro, Diplo, and subsidiaries of all three majors, UMG, Sony Music, and Warner Records, filed a total of five motions to dismiss the case.
During Friday’s hearing on the motions, the court heard previously submitted arguments about whether Fish Market was genuinely original and whether its drum rhythm was copyrightable in the United States.
There was also debate over why Steely & Clevie waited until 2020 to register their work in the country. Donald Zakarin, who represents several defendants, including Luis Fonsi, told the court: “An entire genre of music, reggaeton, grew up over 30 years. Did they sue? Did they bring a claim? Did they do anything? No.”
In 1990, according to the complaint, 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, Dennis ‘The Menace’ Halliburton and the plaintiff Count Shelly teamed up to remake the song’s instrumental, which was then used to record a Spanish language cover titled Ellos Benia, Bobo General and Sleepy Wonder’s Pounder, and also an instrumental mix called Pounder Dub Mix II (Pounder riddim), which was sampled widely in the Reggaetón genre between 1995 and 2021.
The songs named in the suit include some of the decade’s biggest hits, such as Luis Fonsi’s Despacito Remix with Justin Bieber and Daddy Yankee; Bad Bunny’s MIA with Drake; Drake’s One Dance with Wizkid and Kyla; El Chombo’s Dame Tu Cosita with Cutty Ranks; Daddy Yankee’s Dura, Gasolina, and Shaky Shaky; DJ Snake’s Taki Taki with Selena Gomez, Ozuna, Cardi B; and Pitbull’s We Are One (Ole Ola).
But, according to Rolling Stone, Judge Birotte showed more interest in music that existed before the Fish Market riddim.
“Prior art does matter when we’re talking about combination, selection and arrangement claims. It goes into the new or novel standard,” Zakarin replied to the judge’s query. “One way you look at that is, ‘What existed?’ Well, there was revival music. The plaintiffs… they heard this in the streets of Jamaica. They heard these beats, they borrowed it. So what? They borrowed this piece, that piece. That means it’s not new or novel.”
However, Burroughs contended that Steely & Clevie’s work was original and that the concept of “prior art” did not apply in this case. “In 1989, when this song was released… this was an original work, there was nothing like it,” he argued.
Judge Birotte probed: “So your view is that before this, nothing like it existed? The boom-bap-boom-bap sort of rhythm, you think there was nothing like it before it?”
Burroughs answered that Fish Market had “seven discrete elements,” which made it new and protectable.
In written submissions filed in August, the lawyers for the Jamaican producers had argued that “the two-measure Fish Market pattern is original and consists of interlocking tiers of instruments, timbres, and harmonic (bass) and rhythmic (kick, snare, and ‘tom’ drums; hi-hats; timbales; and tambourine) elements repeated throughout essentially the song’s entirety.”
On Friday, the judge asked, “How would you distinguish this, if at all, from the traditional dancehall rhythms used since I was a kid in reggae? If you go on the streets of Jamaica… big speakers, same beat.”
“Again, I was a college party music DJ. I had probably hundreds — hopefully, this is beyond the statute of limitations — hundreds of CDs from the streets of New York and New Jersey with literally the same riddim running for 45 minutes,” he continued.
Rolling Stone said Burroughs didn’t budge. He maintained that the fact that so many artists went on to allegedly copy the song with “mathematical precision” proves it was special.
Concluding the hearing, Judge Birotte held off on an immediate decision on whether to dismiss the case. “This is a difficult question. I see the arguments on both sides,” he said, leaving the matter pending.
Born in New Jersey to Haitian immigrants, Birotte was appointed to the District Court for the Central District Of California after being nominated by President Barrack Obama in 2014.