Listen To The Related Podcast Episode Here: Rebelations Podcast Episode 17: Should Anyone Be able To Own A Drum Pattern?
We wanted to start off by paying our respects to the De La Soul members and their families after the passing of founding member David Jolicoeur.
You will be missed. My favourite song by them will always be ‘Land of Oooh Ft Redman.’ The music video features Dave Chapelle and Rah Digga is also in it. At least he lived to see his group land a deal to get the rights to their music back. Rest In Power.
Should Anyone Be Able To Own A Drum Pattern?
“These guys are making money from our music. Reggaeton was made from a Jamaican single, Dem Bow. Every rhythm in Reggaeton is the same drum pattern of Dem Bow and mi neva hear that anybody collect royalty from that yet,” -Niney
Despite the fact that rhythms, frequencies, and vibrations are global languages, we have nonetheless discovered a method to claim ownership of them through numerous copyrights and laws. Drums are the most frequent instrument used in the majority of modern popular music. The majority of today’s international genres are powered by drums. What would happen if someone were to claim ownership of a drum pattern in the context of the millions of songs that are played every day? Who could employ that specific rhythm if that person or those people were to become the gatekeepers? Would that create a standard for other genres to follow?
The inspiration behind this blog is the lawsuit that was brought forward by Jamaican music production legends Steely & Clevie. Since Steely passed away in 2009, it is the estate of Steely who is participating in the lawsuit. According to DancehallMag, the lawsuit was filed in 2021 but has been gaining steam in the media once again in 2023. The claim is that the Reggaeton genre has single-handedly hijacked their original production of the riddim called “Fish Market,” which is also similar to a production called “Poco Man Jam.” It became internationally popular when it was used for Shabba Ranks’ song “Dem Bow.”
The law firm ‘Doniger/Burroughs’ is representing Cleveland Brown, aka Clevie and the Wycliffe Johnson, aka Steely estate. The lawsuit claims that Puerto Rican singer Luis Fonsi has songs that infringe the production duo’s intellectual property rights for their Fish Market riddim. “In describing the Fish Market beat, the lawsuit states among other things, that the riddim “is an original work including an original drum pattern that gives it a unique sound that differentiates it from prior works” and includes the combination of instruments including a programmed kick, snare, and hi-hat, playing a one bar pattern, as well as a tambourine playing through the entire bar”.
Supporting the case with transcripts of the instrumentals of Fish Market and Fonsi’s songs, the lawsuit said that the rhythm section of Despacito, Despacito Remix with Justin Bieber, and the other songs, copied original elements of the Fish Market rhythm section, including its original combination of drum and bass patterns. “The musical backbone of Despacito and the Despacito Remix are substantially similar, if not virtually identical to a significant portion of Fish Market…” it said.
In response to this, Fonsi’s lawyers said that the “defendants deny knowledge or information sufficient to respond to the allegations… except deny that all or any portion of the referenced composition and/or sound recording “Fish Market” is original or protectable and aver (maintain) that no response is required to the extent that the paragraph purports to state any conclusions of law.”
In their defence, Fonsi’s attorneys also argue that: “allegedly copied portions of the works at issue are neither original nor a protectable expression of an idea”; any allegedly copied portions of the works at issue lie in the public domain. Also featured with Fonsi, among the defendants, are his label Universal Music Publishing, Warner Music,
Universal Music Latin Entertainment, Sony/ATV Music Publishing and others. El Chombo, LunyTunes, Myke Towers, Ozuna, Nicky Jam, Sebastián Yatra, Farruko, and Rauw Alejandro were also mentioned in the claim. It also hits companies like Universal Music and Sony Music.
Lastly, Daddy Yankee makes up the final accused group, with (drum roll, please) over 40 songs included in the lawsuit. All the underlined songs allegedly used the “Fish Market” riddim copyright, including chart-toppers like “Rompe,” “Dura,” “Gasolina” and “Hula Hoop.” Yankee’s many collaborators, like Anuel AA, Yandel, Sech, Tainy, Ozuna, and Wisin, are also named in the suit. The plaintiffs explained in the lawsuit that they “believe and now allege that Defendants knowingly induced, participated in, aided and abetted in and profited from the illegal reproduction, distribution, and publication” of the infringing works.
Historical Background of Dem Bow
Throughout the ’90s the riddim was heavily used not only by up-and-coming Spanish Reggae and Reggaeton artists and producers, but it was also used by various Jamaican artists as well.
In outlining the trajectory which led to the use of the Fish Market riddim by Reggaeton artists, the lawsuit noted that “in 1990, subsequent to the release and success of Shabba Ranks’ Dem Bow, Denis Halliburton aka “Dennis the Menace” replayed Dem Bow’s instrumental in creating a sound recording of an instrumental that was used to record a Spanish Language cover version of Dem Bow entitled Ellos Benia. The riddim was released in 1990 and featured songs such as the title track Poco Man Jam by Gregory Peck; Father Crab by Johnny P, Tie me Down by Flourgon, Trailer Load of Girls by Shabba Ranks, and Dem fi Dead by Papa San. Other songs were Proceed Gal by Mega Banton, Gal yuh look Good by Admiral Bailey, Bad Mind by Red Dragon, and Stamina Body by Mega Banton.
Other songs were Proceed Gal by Mega Banton, Gal yuh look Good by Admiral Bailey, Bad Mind by Red Dragon, and Stamina Body by Mega Banton. The complaint states further that Steely and Clevie “wrote and recorded the instrumental song entitled Fish Market and that the “recording and composition for the Song are registered with the United States Copyright Office”.
The complaint also pointed out that Fish Market riddim’s drum pattern is the foundation for all the beats of the Reggaeton genre, which was initially known as Dem Bow, after Shabba’s hit track, which featured on the riddim. “In 1990, Mr. Browne and Mr. Johnson co-authored the song titled Dem Bow (roughly “They Bow” in English) with Shabba Ranks. Dem Bow was a massive club hit and garnered worldwide acclaim in the international reggae dancehall scene. Dem Bow’s instrumental (which is an alternative mix of Fish Market, based on the same multi-track recording) is iconic and has been acknowledged as foundational to Reggaeton music,” it said.
This is when I began to consider a few things. Should Anyone Be Able To Own A Drum Pattern? is the query I pose. What would happen if someone decided to claim ownership of House Music, Salsa, Merengue, Cumbia, and Hip Hop? They all significantly utilise the same percussion patterns within their respective genres. What if someone claimed to have created the clave used in salsa music?
What would occur if they were granted the authority to choose who employs such drum patterns if they prevailed in court? That, in my opinion, would put an end to the freedom of expression in music. Imagine if you had to run your tracks by an entity or a person who gets to decide if you can release a song using their drum pattern? What if someone claimed the boom-bap drum pattern? Hip Hop would have never blown up to the global status it is in.
This is a clip from an interview with The Observer: As far back as 2013, producer veteran music producer Winston ‘Niney’ Holness had expressed grave concern that Spanish artists were guilty of infringing on the work of Jamaican artists and producers. “These guys are making money from our music. Reggaeton was made from a Jamaican single, Dem Bow. Every rhythm in Reggaeton is the same drum pattern of Dem Bow, and mi neva hear that nobody collect royalty from that yet,” Niney had told The Gleaner in an interview. “So these people make an entire genre from reggae music and get the major endorsements, while we don’t get much from our property,” the producer, who is also known as Niney, The Observer said.
Niney had also pointed to another act of skullduggery where he said Spanish musicians were recording Jamaican songs in Spanish without the consent of the original artists, while paying no copyright fees, thus continuing the practice of the “international community robbing the profits of Reggae music”. “When we make songs, Spanish people take it and sing it differently, and we don’t speak Spanish, so we don’t realise. Because of that, the Spanish artists don’t pay us royalties, and it slips right under our noses. I think the Spanish owe reggae music millions of dollars right now. Songs like Murder She Wrote is in Spanish right now, and I don’t even think Sly and Robbie know,” Niney had said.
The law firm Doniger/Burroughs, based in New York with offices in California, is representing Steely & Clevie. The firm specializes in copyright cases and has worked to protect the intellectual property rights of artists over the years. The firm also states that they’ve won all 14 of their last 14 copyright infringement trial by jury and comes out on top in several other legal disputes involving infringement, as well as recovered over US$100 million for their clients.
The duo would go on to co-author Shabba Ranks classic “Dem Bow” using the same beat. That song, which was a bit of a remix of the Fish Market, was produced by Bobby Digital but is widely regarded as the foundation of the entire Reggaeton genre of music across Latin America. The track was a huge hit in the 90s and is still being played in dancehall sessions currently.This is significant because when I was a teen, I believed that Reggaeton musicians were permitted to sample Jamaican riddims. That appears to have not been the case. I foolishly believed that some of the beats I heard in Reggaeton were original. Songs such as ‘Say Ho-Yandel’ is a song produced by LunyTunes that sampled the ‘Movie Star Riddim.” Nejo Y Dalmata and Gastam sampled Gregory Isaacs- Night Nurse for their song “La Nena Que Yo Quiero Pa Mi.”
Over the years, Reggaeton artists have been accused of hijacking one of the most important beats that formed the fundamentals of dancehall music.
In an interview with The Breakfast Club earlier this year, Shaggy weighed in on the issue and pointed out that Reggaeton, a billion-dollar music industry, is still using the same beat as “Dem Bow” today. “So Reggaeton which comes from dancehall, is a billion-dollar industry/genre, they’re still on that dancehall beat,” Shaggy said. “The beat itself, the Reggaeton beat itself, is called Dem Bow, it comes from Shabba Ranks’ Dem Bow, they’re still on that, and it’s a billion dollar genre.”Daddy Yankee is a Puerto Rican artist who is credited as the “King of Reggaeton” and the person who originally coined the name Reggaeton in 1994 when the genre was just starting to take shape. Perhaps there would be no Reggaeton if it wasn’t for Daddy Yankee and other early adopters who took elements of dancehall and hip-hop music and fused together to make the Spanish language genre.
Reggaeton’s Response:
So, how about the defendants? Well, that’s a whole other story, and it’s seemingly bringing the entire reggaeton genre under fire. Court documents divide the accused into three categories: El Chombo, Luis Fonsi, and Daddy Yankee. For one, the plaintiffs are suing Panamanian reggaetonero El Chombo for his alleged use of “Fish Market” in his hit “Dame Tu Cosita.”
While I did my research for this blog, I came across some information in a music forum online. What the fans discovered was this:
“They can’t claim the rhythmic pattern of a whole genre. It is like someone suing to claim they own La Clave from salsa music.” This one makes so much sense to me, to be honest. This is a crazy lawsuit that I’m fairly confident doesn’t have a leg to stand on, but the precedent it would set if it were successful would have ripple effects not just through dancehall but through basically all of reggae/rocksteady/ska and then probably beyond if any artists or labels were feeling particularly vindictive.
There was a similar case around the”Amen Break” sample that’s central to drum and bass/jungle/breakbeat/frankly electronic music in general at this point, but even that was around a recorded sample being reused without permission, not a drum pattern like the Fish Market/Dem Bow example. Dancehall, in particular, is a very strange genre to attempt a lawsuit like this, I will say. The entire history of reggae is built on dubplates, DJing, remixing, etc… right from the very beginning.
It’s like trying to claim the four-on-the-floor beat in House music.
This suit covers over 50 different songs from as early as 1995 and as late as 2021, with at least 22 billion combined views on YouTube. A common statistic that gets thrown around is that they produced literally half of all the hit songs in Jamaica during a five-year span in the late 80s and 90s. The Guardian’s obituary of Steely even inflates that number up to 75%!
Copyright law in the US for music has separate components for the composition of a song and for a specific recording of a performance of that song. Modern digital production techniques (which were popularized by people like Steely & Clevie in the first place) have blurred the lines between the two, but the distinction matters for things like sampling law. It’s particularly relevant here because the lawsuit is primarily based on the composition of the songs and *not* the sampling of any audio S&C ever produced.
On top of the Dem Bow/Fish Market confusion, the actual source of the iconic Reggaeton drums that everyone samples from is a completely different track known as “Pounder.”
The lawsuit acknowledges this, but their logic is that because Pounder was a remake of Fish Market, they can use people sampling Pounder as actual evidence that Fish Market’s copyright was violated. However, Pounder itself is NOT actually one of the songs being accused of copyright violation. The name of its producer, Dennis “The Menace” Halliburton, is only mentioned twice in the entire 82-page consolidated complaint.
The tom in Date La Vuelta plays the exact downbeat pattern as Fish Market, with emphasis on beats 1 and 3, and shares the unique sonic character of the tom sound found in the Pounder riddim, indicating that the tom sound was sampled from the Pounder riddim.
Steely & Clevie had absolutely nothing to do with that tom sound! Even if we acknowledge that Dennis the Menace was ripping off S&C’s composition when he made Pounder and that every reggaeton producer was ripping off Dennis the Menace’s ripoff in their own compositions, Dennis the Menace was still responsible for associating those particular drums that everyone loves with the composition and in my humble opinion should be compensated just as well as Steely & Clevie. It seems to me that the correct way of handling things would be for people to pay royalties to Dennis the Menace, who in turn has to pay royalties to Steely & Clevie and/or Bobby Digital.
So, going back to what is in the actual lawsuit, it says that the bass line played on Shaky Shaky copies the tone and minimalist structure of that played in Fish Market. However, anyone who’s even a little bit familiar with the 90’s dancehall will instantly recognize the song being referenced by the bassline here as Chaka Demus & Pliers – Murder She Wrote.
In addition to clearly being the inspiration for the bassline, Murder She Wrote has almost the exact same kick/snare pattern that’s constantly being referenced in this lawsuit. It also has 100 million views on YouTube, was ranked the #2 dancehall song of all time by Pitchfork, and has its own Wikipedia page that says this:
Sampling-wise, the song was included in Billboard’s list of the “Best Song Interpolations of the 21st Century”, having been interpolated in Omarion’s “Post to Be” and in XXL’s list of the “Most Iconic Reggae Samples in Hip-Hop” being sampled in French Montana’s “Freaks”. The song was also interpolated in Pitbull’s “Taxi,” in Jason Derulo’s “Too Hot”, and in the remix version of Black Eyed Peas “Ritmo” featuring Jaden Smith, as well as having been sampled and interpolated in many other songs.
Interestingly enough, the existence of this extremely famous and influential song with a nearly identical drum beat was not mentioned at all in the lawsuit against Shaky Shaky, nor is it being sued for violating the copyright of Fish Market.Could it be comparable to inventing a new dance?
Some attempts to claim ownership of certain concepts recently reached the “I 100% understand you hating your stuff getting ripped off with no benefit or credit to you” but giving you the ability to own this would be extremely bad for society as a whole due to the precedent it sets.
The attempt by some to trademark dance moves fits in that area as well. Imagine claiming the Salsa fundamentals? It’s bad enough that our society likes to point out when white people dance to traditionally non-white music but imagine if people were able to say that someone can’t dance a certain way because the originator wouldn’t like it and can legally prevent you from doing so? Sometimes there just isn’t a good possible legal remedy.
So, with all of this said, now that you have an idea of what has been going on, I’m going to share my thoughts. What I find interesting is that it seems as though Steely and Clevie’s estates decided to come for Reggaeton as a whole once it really blew up. It’s been over 30 years, and now is when they’re really coming for the Reggaeton artists and producers. It’s also worth mentioning that they could have gone after anyone, but they went after Luis Fonsi, who is not at any capacity considered a Reggaeton artist. He’s a Pop artist who happens to make some bubbly reggaeton music at times. But he is the target since it’s his video and song for Despacito that’s broken streaming and viewing records worldwide.
I do believe that if there is a way for these people to be compensated, then they should be. After all, without them, the Fish Market riddim would have never happened, and without Fish Market, we wouldn’t have had the Pounder riddim, and without Pounder, we would never have Reggaeton as we know it.
“Thank you for reading this far; even if you disagree with what I have to say, I hope you were able to see things from my point of view. Perhaps as I go through life, or perhaps as I talk to more people about this, my views may change. Perhaps your perspective will shift. The unknown. Cheers.”
Written By: Mario Funes
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