Can anyone really own the beat behind reggaeton?

A copyright lawsuit in the music industry that has targeted Bad Bunny, Karol G, Daddy Yankee, and hundreds of other artists hit a wall in early September.

A federal judge in California threw out one of the case’s central claims — that the syncopated rhythm at the heart of reggaeton music is protected by copyright.

You might know this beat as “dembow.” But even if you don’t — you’ve probably heard it.

For more on the details of the case, “Marketplace Morning Report” host Kimberly Adams spoke with Jennifer Jenkins, a professor at the Duke University School of Law and author of the book "Music Copyright, Creativity, and Culture."

The following is an edited transcript of their conversation.

Kimberly Adams: Can you briefly lay out who filed this lawsuit and what exactly they're suing over?

Jennifer Jenkins: Sure. The lawsuit was filed by a Jamaican production duo named Steely & Clevie. And way back in 1989, they had created an instrumental track called “Fish Market.”

And so in 2021, they filed this sprawling, massive lawsuit against over 160 defendants, targeting over 1,800 songs. And by the way, I'm not making those numbers up.

And the claim is that all of these songs are infringing that core dembow rhythm that you hear in their instrumental track, "Fish Market.”

Adams: Here's the isolated beat that's at the root of all of this.

Adams: And here's where that rhythm shows up in that song you referenced, “Fish Market” from 1989.

Adams: But, Professor Jenkins, can you own a copyright for something like this?

Jenkins: The answer is a resounding “no.” Copyright actually has two doctrines that are unusually good fits for this particular case. One — it's French, it's called “scènes à faire,” which is French for “scenes that must be done.” That says no one can own an element that defines a genre.

Copyright also says you can't own something unless it's original. Well, the rhythm you heard is not only in thousands of songs after “Fish Market” — it was in thousands of songs before “Fish Market.” Anything copied from other songs isn't copyrightable.

Adams: What did the judge in the case say about that?

Jenkins: So he basically said in July of this year that his hands were tied, and the case had to go to trial. And so we were all settled in for the long haul, waiting for a trial, maybe in late 2028.

At the last minute, Bad Bunny's brilliant lawyer filed a motion for reconsideration. These are almost never granted. And he basically went back to square one: To own a copyright, you first need a copyrighted work.

And what the plaintiffs had done is stitched together what the lawyer called a “Frankenstein” rhythm from three different tracks for purposes of this lawsuit. And so he made that argument to the judge, and the judge said, "You're right. There is no single copyrighted work containing the rhythm they claim to own.”

Adams: Since that core claim has been dismissed, even if other parts of the case are ongoing, what do you think are the longer-term implications of this decision?

Jenkins: This is a huge win, not just for Bad Bunny, not just for reggaeton, but for all musicians, including, interestingly, the plaintiffs themselves. Because if something as basic and common as that rhythm can be owned, it would be impossible to create without fear of a lawsuit.

In fact, “Fish Market” might be infringing someone else's copyright. If we have a better mechanism going forward for weeding out these kinds of claims over really basic musical kernels that copyright deliberately leaves free for all artists — and to respect and take seriously real claims — when, say, if I put “Fish Market” in the soundtrack for my movie, they should absolutely be able to come after me and say, "Hey, Jenkins, that's copyright infringement!” — that's better for the copyright system generally.