Lawsuit Raises Question of Whether Rhythms Are Copyrightable
Are Rhythms Copyrightable? Recent Lawsuit Aims to Answer
More than three decades after their song was released, Cleveland Browne and Wycliffe Johnson are suing and seeking royalties for alleged infringement of the “dembow” rhythm. The “dembow” rhythm refers to a percussive beat that features heavily in reggaeton, a distinctive and fundamental feature of today’s Latin-American pop sound. Now, claiming that their song, “Fish Market” has been consistently infringed, they are seeking royalties and damages, but can a rhythm be copyrighted?
Plaintiffs Claim Rhythm Copyright Infringement
In 1989, Browne and Johnson released their song, “Fish Market.” According to Browne and Johnson, Fish Market made famous the “four-on-the-floor” rhythm, which means there are four consecutive quarter notes within one measure of 4/4 music time. They argue this rhythm has gone on to become the backbone of reggaeton and heavily dominates Latin-American pop sound today. And now, more than thirty years later, Browne and Johnson claim at least fifty-six popular songs infringe upon Fish Market by incorporating this rhythm.
Under U.S. copyright law, rhythms are generally not found to be protectible. Despite this, however, some gray area exists if work can be shown to be substantially unique and worthy of copyright protection.
Are Rhythms Copyrightable if Credit Is Publicly Given Over Time?
As support for their copyright litigation claims, the plaintiffs point to a 1990 song “Dem Bow,” which specifically credits the plaintiffs, noting them as co-writers, and highlights the Fish Market rhythm. Plaintiffs also argue that many experts in the music field have recognized their contributions to reggaeton and state that the use and reuse of the “dem bow” rhythm should not preclude credit and acknowledgment. On the other side of the dispute, some experts disagree over whether “Fish Market” is as influential as argued by the plaintiffs. Regardless of whether the “dem bow” rhythm clearly originates from Browne and Johnson, they believe it will still be too difficult to prove that many of the named defendants had prior knowledge of the song.
Perhaps, in anticipation of this, the plaintiffs have asked for a jury trial. Strategically, this may be calculated to gamble on jury decisions being more sympathetic to plaintiffs, as demonstrated in the 2015 landmark “Blurred Lines” copyright decision that found Robin Thicke and Pharrell Williams guilty of infringing upon Marvin Gaye. The 2015 decision changed the course of today’s copyright law that addresses pop music and also led to music labels preemptively crediting artists to avoid future copyright disputes.
Key Takeaways on Whether Rhythms Are Copyrightable
A new pop music lawsuit raises the question of whether rhythms are copyrightable. Legal counsel should know:
Rhythms are not generally copyrightable under U.S. law;
Gray area may exist if there is a showing that the rhythm is substantially unique; and
Jury trials have increasingly become the preferred means of disposition for music copyright questions after the 2015 Blurred Lines trial’s surprising verdict for Plaintiff and the recent Ed Sheeran win against infringement.
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