Background
In 1989, Jamaican producers Cleveland “Clevie” Browne and the late Wycliffe “Steely” Johnson recorded “Fish Market,” an instrumental track built around a distinctive percussion pattern — kick drum, snare, hi-hat, and tom hits arranged in a syncopated rhythm that became known as the “dembow riddim.” That rhythm was soon licensed to dancehall artist Shabba Ranks, who used it in his 1990 hit “Dem Bow,” and from there it spread across the Caribbean and eventually became the rhythmic backbone of reggaeton, a genre that now generates billions of dollars in global revenue. Over 1,800 reggaeton songs — by artists including Bad Bunny, J Balvin, Karol G, Drake, Daddy Yankee, Luis Fonsi, and Pitbull — allegedly use the dembow rhythm without authorization or compensation to the producers who created it.
In 2021, Browne and Johnson’s estate filed suit in the Central District of California alleging mass copyright infringement. The defendants — a who’s who of reggaeton’s biggest stars and their record labels — argued the case should never go to trial: the dembow rhythm is not original enough to receive copyright protection, and even if it were, they didn’t copy any protectable expression. In 2024, Judge André Birotte Jr. rejected their bid to dismiss the case entirely. By mid-2026, both sides moved for summary judgment on the threshold originality and protectability questions, hoping to win without a jury trial. On July 2, 2026, the court denied both motions.
The Court’s Holding
Judge Birotte denied summary judgment on all sides, holding that “The record presents genuine disputes of material fact regarding the identification, characterization, and protectability of the Fish Market elements, precluding summary judgment in either side’s favor.”
The defendants argued that the dembow rhythm is purely functional — a standard percussion pattern that lacks the minimal originality required for copyright protection — and that even if protected, their songs do not reproduce the specific protectable elements. They challenged originality on two grounds: first, that individual drum sounds (kick, snare, hi-hat, tom) are unprotectable building blocks; second, that the arrangement of those sounds into the dembow pattern is either too simple or too common to constitute original expression.
Browne and Johnson’s estate countered that the specific arrangement and combination of rhythmic elements in “Fish Market” — the way the percussion pattern was constructed, its syncopation, its relationship between the hi-hat and kick-snare pattern — embodies original creative choices and that this specific combination was copied wholesale into thousands of reggaeton recordings.
The court found that competing expert testimony on both sides of these questions — regarding what precisely constitutes the “dembow riddim,” whether that pattern predates “Fish Market,” how similar the allegedly infringing songs are to the protected elements (as distinct from unprotected elements), and whether the differences matter — raised genuine factual disputes that cannot be resolved as a matter of law. A jury must decide.
Key Takeaways
- The threshold originality question is now a jury issue. Even at the summary judgment stage — years into litigation and with extensive expert discovery — the court could not resolve as a matter of law whether the dembow rhythm contains copyrightable expression. That determination, which could reshape rights in the genre’s entire body of work, now goes to a jury.
- Expert battles on musical originality are fact-intensive and difficult to win at summary judgment. Both the defendants’ “it’s not original” argument and the plaintiffs’ “you copied the original parts” argument required credibility and expert-opinion weighing that courts leave to juries. Parties seeking early dismissal of music copyright suits should not count on summary judgment when the originality question is genuinely contested.
- The stakes are existential for the genre. With over 1,800 songs named as potentially infringing, a jury verdict for the plaintiffs could require licenses or royalties for a substantial fraction of all reggaeton recordings ever made. The case is also a test of how broadly the copyright in a musical work’s rhythmic arrangement extends — a question with implications far beyond reggaeton.
Why It Matters
This is one of the highest-stakes music copyright cases in years — not because of a single famous song (as in the “Blurred Lines” or “Dark Horse” cases) but because of the genre-wide scope of the claim. If a jury finds that the dembow rhythm in “Fish Market” is original and protectable, and that subsequent reggaeton tracks copied it, the liability exposure across thousands of songs and billions in streaming revenue could be staggering. The defendants include virtually every major force in a genre whose global streaming numbers rival hip-hop and pop.
The case also raises fundamental questions about the protectability of rhythm — an area where courts have historically been cautious, since basic rhythmic patterns are considered the building blocks that all musicians must share. Judge Birotte’s ruling keeps those questions open. Whether the dembow rhythm is closer to a protectable arrangement of original choices, or to the kind of unprotectable “groove” that courts have consistently refused to monopolize through copyright, is now for the jury to decide.
Surfaced via Law360 IP.