Copyright is one of the oldest laws still in use. The rules regarding the “right to copy” intellectual property were first protected by Great Britain’s Statute of Anne in 1710. The US followed with its own law a month later. Canada jumped on board in 1832 as a colony and reaffirmed it as a country in 1921. These laws protect creators and those who invest in something that benefits the public at large. Woe to anyone who tries to steal these ideas, concepts, and creations. Just ask Robin Thicke and Pharrell Williams what they went through with their song Blurred Lines (which they lost), or Ed Sheeran, who battled over the originality of his Shape of You (in which he eventually prevailed).
Copyright, of course, extends to music. Great Britain clamped down on sheet music piracy in 1777, followed by France in 1791 and the US in 1831. The last of these was important because protection was extended from just sheet music to melody and lyrics, something that we take very, very seriously. Today, if your song sounds suspiciously like a previously released track, you could end up defending yourself in court on charges of plagiarism. Radiohead, Ed Sheeran, Sam Smith, and many others have spent millions on lawyers extricating themselves from such issues, often with mixed success.
There are, however, three musical things you cannot claim as your own forever and ever. The first is song titles. Nothing prevents anyone from calling their new song Smells Like Teen Spirit, although that would be a bad idea. But it does explain why the title Hold On has been used by artists ranging from Santana and Kansas to Wilson Phillips and Justin Bieber.
Chord progressions are also free to use because they are considered to be the building blocks of composition. This includes guitar riffs, which, at their heart, are just another type of chord progression. For example, let’s compare these three songs. No harm, no foul in each case.
There are thousands of similar similarities. Again, nothing illegal about any of them.
The third thing a composer can’t copyright is a rhythm. Again, beats are fundamental to creating music and can’t be protected by one artist. One very common example is the seven-note Shave and a Haircut Two Bits, which dates to at least 1899 when it appeared in a minstrel song entitled At a Darktown Cake Walk. You’ve heard variations eleventy billion times.
But what would happen if, through some quirk of law, a beat was ruled eligible for copyright? The result would be a legal apocalypse. Suddenly, all the songs in the known universe using that beat would suddenly be infringing on copyright. Vast sums of money would have to flow to the entity that successfully laid sole claim to that rhythm
This was the potential outcome of the Steely and Clevie copyright case involving what is known as the “dembow riddim,” which was used as the beat for Fish Market, a B-side to an obscure single released in Jamaica in 1989. The “boom-ch-boom-chick” rhythm rose out of the Caribbean with the rise of dancehall music.
Over the past few decades, it’s become a very popular beat that has been used on nearly 2,000 songs from artists ranging from Shabba Ranks (Demo Bow, 1990) to Luis Fonsi and Daddy Yankee (Despocito, 2017) to Ed Sheeran (Shape of You, 2017). It’s also a foundational beat for practically the entire reggaeton genre, including a long list of songs by Bad Bunny.
In 2021, the estate of Wycliffe “Steely” Johnson (he died in 2009), filed a lawsuit in California against Universal Music and Warner Chappell Music, claiming that Steely and his partner, Cleveland “Clevie” Brown were the originators of the dembow riddim and were thus its rightful owners. Any song by any artist using the dembow riddim was thus in violation of copyright and therefore owed Steely and Clevie a lot of money. Plus damages, of course.
What should have been an open-and-shut case– copyright law clearly says that rhythms are exempt from exclusive ownership–dragged on for almost five years. Eventually, everything ended up in the hands of Judge André Birotte Jr. In July, he said that this case had to go to a jury, which was completely unexpected. Then, in another unexpected move (and after Bad Bunny’s attorneys convinced him to reconsider), Judge Birotte reversed himself, saying that the people representing Steely and Clevie failed to establish a case for control of the rhythm.
The final ruling is that the plaintiffs had attempted to base ownership of the beat on a “Frankenstein copyright.” Their whole case, he said, was based on claims involving three separate songs, not just Fish Market. Therefore, the beat does not exist as a single standalone copyrighted work. Therefore, all allegations of copyright infringement are null and void. Cue the cheers of millions of reggaeton artists and fans worldwide.
Two things remain unresolved, however. First, Steely and Clevie still have a shot. Slivers of this case involve unauthorized samples of their original record. That can be very actionable.
And second, what if an alleged rhythmic infringement can be proven to be a singular work that has been copied? Given the importance of beats in hip-hop (some of which are quite intricate), could someone bring forward a similar case? And lawyers being lawyers…
Why do I feel that this issue is far from settled case law?