A federal judge said both sides submitted qualified expert opinions disputing the originality of the 1989 instrumental track, preventing him from deciding as a matter of law whether it is protected under copyright law.
LOS ANGELES (CN) – A who’s who of reggaeton artists, including mega-gays Bad Bunny and J Balvin, have lost their bid to beat a copyright infringement lawsuit by a pair of Jamaican producers who claim the entire music genre is based on the unauthorized use of an instrumental they recorded on.
US District Judge André Birotte Jr. denied summary judgment motions by dozens of musicians and their record companies, and a cross motion by producer Cleveland Browne and the estate of the late Wycliffe Johnson.
Reggaeton artists argued that the percussive arrangement of “Fish Market”, created by the producers – known professionally as Steely and Clevie – was initially insufficient to merit protection under US copyright law.
“The record presents a genuine dispute of material fact regarding the identification, characterization and protection of the Fish Market elements, precluding summary judgment in favor of either party,” Birotte wrote in Wednesday’s decision. “These disputes go directly to the core issues of originality and protection that define this phase of the case. Critically, they are driven almost entirely by competing expert analyses.”
The judge, an appointee of Barack Obama, had already indicated in a December hearing on the motions that the question of authenticity turned on the dual opinions of each side’s experts and that he was unlikely to resolve the case as a matter of law.
Consequently, a jury may have to decide whether the Jamaican producers’ drum pattern – including kick, snare, hi-hat and tom elements – is original enough to support claims that thousands of reggaeton songs have illegally copied it.
Allegations of infringement are complicated by the track’s subsequent history.
“Fish Market” was originally recorded as a B-side to Gregory Peck’s “Poco Man Jam”, then licensed to dancehall artist Shabba Ranks, who used it on his 1990 hit “Dem Bow”, creating what became known as the “dembow riddim” or “dembow rhythm”.
Dennis the Menace Halliburton then included the beat on his Pounder Riddim recording. The plaintiffs say that a later version, “Pounder Dub Mix II,” was then sampled or “mathematically” copied by numerous reggaeton artists in recent years.
Benjamin Akley, who represents many of the artists and record companies, argued at a 2025 hearing that the producers’ original percussion arrangement does not appear on any single work.
Instead, he argued, the plaintiffs combined elements from several tracks to claim ownership of a protected composition.
Ken Freundlich, who represents Bad Bunny, accused the producers of “shape-shifting,” saying they were trying to assemble a Frankenstein-like work from scraps of various recordings, leaving the defendants unclear what, if anything, they are accused of violating.
“We have thousands of songs in this case and we still don’t know what we’re comparing them to,” Freundlich told the judge. “That is the cardinal sin of this case – we do not know what we are trespassing on.”
Stephen Doniger, who represents the estates of Browne and Johnson, argued at the December hearing that defense experts had failed to identify any previous work that contained the same combination of drum, percussion and bass elements found in “Fish Market.”
“What is clear in this case is that there is nothing out there in the world to indicate that they copied” the hit-and-run arrangement, Doniger told the judge.
Attorneys for the plaintiffs and defendants did not immediately respond to requests for comment on the ruling.
Subscribe to our free newsletters
Our weekly newsletter Closing arguments provides the latest on ongoing trials, major litigation and decisions in courts around the US and the world, while monthly Under the lights feeds legal dirt from Hollywood, sports, Big Tech and the arts.
