A federal judge tossed the core theory behind a long-running suit over the dembow rhythm, narrowing but not ending the case.
A federal judge has knocked out the copyright theory at the center of the long-running case accusing Bad Bunny, Drake and more than 150 other artists of copying the reggaeton rhythm known as dembow.
US District Judge André Birotte Jr. ruled on Tuesday, Sept. 1, that the plaintiffs had not identified a single copyrighted work containing the combination of elements they are trying to protect. That finding reverses his July 1 order, which had left the question of whether the rhythm is protectable for a jury.
The court says the claimed work was never pinned down
The lawsuit was filed in 2021 by Cleveland “Clevie” Browne and the heirs of Wycliffe “Steely” Johnson. They say their 1989 track Fish Market is the source of the percussion pattern used throughout reggaeton. Their claim reaches nearly 2,000 tracks, including Despacito, Tití Me Preguntó and Dame Tu Cosita.
In his July 1 order, Birotte had said the parties’ experts disagreed so sharply that a jury would need to sort out whether the rhythm was original and protectable. Bad Bunny and Rimas Entertainment asked him to revisit that ruling on July 15, arguing that the combination described by the plaintiffs does not exist in any one work they own.
Other defendants backed that request, including Drake and OVO Sound, UMG Recordings, Empire Distribution, Maybach Music Group, Rich Music and Cinq Music Group. After hearing argument on Aug. 14, Birotte sided with them.
He vacated the part of his July 1 order that had denied summary judgment and granted it to the defendants on the selection-and-arrangement theory. He also granted all 10 requests from other defendants to join the motion, extending the ruling to them as well.
Why the judge said the theory could not stand
Birotte’s order turns on a basic problem: the plaintiffs could not clearly identify which copyrighted work contains the protectable selection and arrangement they want to enforce. The plaintiffs own the Fish Market composition and recording, the Dem Bow composition, and the Pounder (Dub Mix II) recording, but not the Pounder (Dub Mix II) composition.
That matters because, the judge wrote, the record does not show that the two-bar transcription in the complaint — or the full combination the plaintiffs seek to protect — exists in any one of those works.
He rejected the idea that a plaintiff can piece together a copyright claim from parts of several different works. “The fact that the constituent elements may be drawn from, or may separately appear in, other works does not permit a plaintiff to reconstruct a new purported copyrighted work by aggregating portions of multiple works and then treat that reconstructed combination as the subject of copyright protection,” Birotte wrote.
He went further, saying that would amount to “an attempt to create the asserted copyrighted work through the litigation itself.”
The judge also pointed to the Aug. 14 hearing, where the plaintiffs for the first time said more clearly that the complete two-bar pattern in the complaint exists in Fish Market itself. That shift, he wrote, showed the parties were not just fighting over the facts. They were fighting over what the copyrighted work actually is.
What survives, and what does not
Birotte said the question of which work defines the copyright is for the judge, not a jury. “The jury cannot determine which collection of elements, drawn from one or multiple works and rearranged, constitutes the copyrighted work in the first place,” he wrote. “Doing so would invert the copyright analysis by allowing the factfinder to define the subject matter of the copyright before determining whether that subject matter is protected.”
He added that the scope of the claimed work cannot “remain fluid throughout litigation.”
The practical effect is blunt: the theory that has driven the case for more than five years cannot go to a jury in its current form. “Because Plaintiffs have not identified a single copyrighted work containing the alleged protectable selection and arrangement, Plaintiffs cannot, as a matter of law, proceed on the theory presently pleaded,” Birotte wrote.
He did not decide whether the rhythm itself is original. He also made clear that he was not ruling that every protectable selection and arrangement must be a continuous two-bar musical phrase, and he did not decide whether the rhythmic elements, taken individually or together, are original.
The order also does not address damages. Billboard reported in July that hundreds of millions of dollars were at stake. The case is still alive, and the parties have been ordered to meet within 30 days to discuss a schedule for the remaining claims. A joint plan, or competing plans, must follow within 15 days after that.
Claims over the alleged copying of the plaintiffs’ sound recordings were not decided. Bad Bunny’s motion had already acknowledged those issues would still need to be litigated. Birotte also denied the fallback request to send the question directly to the Ninth Circuit if he declined to reconsider.
The ruling leans on the Ninth Circuit’s 2020 decision clearing Led Zeppelin over Stairway to Heaven. For now, though, the key point is narrower: the plaintiffs cannot proceed on a theory that asks the court to assemble the copyrighted work out of pieces of several different works and call that the thing being protected.
