Steely & Clevie Facing An “Uphill Battle,” But Have Been Strategic In ‘Dem Bow’ Lawsuit, Say US Attorneys
Two US-based lawyers have offered their views on Steely & Clevie Productions’ copyright lawsuit against Panamanian artist and producer El Chombo, Puerto Rican artists Luis Fonsi and Daddy Yankee, and a slew of other Reggaeton artists, producers, and record companies.
Multi-platinum and Billboard-charting hits such as Despacito, Rompe , Dura , Gasolina, Shaky Shaky, and Dame tu Cosita are among the 56 Reggaeton songs named in the lawsuit as having allegedly infringed on the Dancehall label’s 1989 riddim Fish Market (Poco Man Jam), better known as ‘Dem Bow.’
According to The Guardian, Gregor Pryor, a lawyer who specializes in media and entertainment, posited that Steely & Clevie “may be facing an uphill battle” if they cannot convince the court that “the defendant ever actually heard, or could reasonably be presumed to have heard, the plaintiffs’ song before creating the allegedly infringing song.”
The attorney, who is not involved in the case, said that it is hard to prove that someone has had prior knowledge of a song, which means that the courts will have to consider a song’s popularity.
Nevertheless, he said that the use of language such as “foundational” and “iconic” in the Jamaicans’ lawsuit “to describe the instrumentals are early attempts to signpost its popularity and show that access would have been likely.”
“Whether this point is successful or not will depend on the plaintiffs’ ability to demonstrate that the work was as popular as they have suggested, which may prove challenging,” he said.
Additionally, Pryor said that Steely & Clevie could also have to contend with the fact that the defendants have “a plethora of defences against copyright infringement at their disposal, which will make the plaintiffs’ argument more difficult to prove.”
The lawsuit had initially comprised three separate cases, before they were consolidation into a single action in July 2022.
In April 2021, Steely & Clevie Productions’ made their first move when they filed a lawsuit against El Chombo and several other artists, producers, and record companies over their involvement in the release of Dame tu Cosita (which featured Jamaican artist Cutty Ranks) and the Dame Tu Cosita remix (which featured Pitbull and Karol G).
In October 2021, Steely & Clevie filed the second lawsuit against Luis Fonsi and several other artists, producers, and record companies over 10 of his songs, including Despacito (with Daddy Yankee) and the Despacito Remix (with Daddy Yankee and Justin Bieber).
In May 2022, they filed the third lawsuit against Puerto Rican rapper Daddy Yankee and several other artists, producers, and record companies over his alleged use of the Fish Market in 44 songs.
In March last year, the attorneys for Fonsi had responded to the copyright infringement lawsuit, pleading that they “have not engaged in any type of infringement,” that “there is no actionable similarity between the works at issue,” and by and large that they “deny knowledge or information sufficient to respond” to the majority of the allegations.
Why Steely & Clevie Prefers A Jury Trial
New York copyright lawyer Paul Fakler told the Guardian that Steely & Clevie has been strategic with their request for a jury trial.
“One of the key things in copyright law is that ideas are not protected, but unique expressions of ideas are. So a lot of times when you have these copyright cases go to juries, you can get wacky results,” he told The Guardian.
Fakler also explained that when judges and juries “are faced with the intricacies of musical theory, the verdict often becomes less about the music and more about the story behind it”.
As a case in point, he cited the 2015 Blurred Lines case, in which a jury found Robin Thicke and Pharrell Williams guilty of infringing on the copyright of a 1977 Marvin Gaye song, as a watershed moment in pop copyright claims.
In that case, according to an Ethics Unwrapped commentary by the University of Texas at Austin, Marvin Gaye’s Estate had won a lawsuit against Robin Thicke and Pharrell Williams for the hit song “Blurred Lines,” which had a similar feel to one of his songs.
The University noted that in 2013, Robin Thicke and Pharrell Williams had co-produced the hit single Blurred Lines, which earned them more than $16 million in sales and streaming revenues, and which had also been viewed hundreds of millions of times on YouTube and Vevo, and parodied numerous times.
“Despite its popularity, the similarity of Blurred Lines to Marvin Gaye’s 1977 hit song Got to Give It Up sparked controversy. The family of artist Marvin Gaye was outraged; they believed Gaye’s work was stolen. Thicke filed a pre-emptive lawsuit to prevent the Gaye family from claiming any share of royalties. However, Thicke also stated in public interviews that he was influenced by Marvin Gaye and, specifically, Got to Give It Up when he co-composed “Blurred Lines” with Williams,” the article stated.
In March 2015, the jury ruled in favor of the Gaye estate, stating that while Williams and Thicke did not directly copy “Got to Give It Up,” there was enough of a similar “feel” to warrant copyright infringement. Gaye’s heirs were awarded $7.4 million in damages, the largest amount ever granted in a music copyright case.
In September last year, British pop singer Ed Sheeran was ordered to stand trial in the US over claims his hit song Thinking Out Loud plagiarised the beat of Marvin Gaye’s Let’s Get It On, a track whose beat was also sampled in a remix of Shaggy’s megahit song, Mr. Bombastic in 1996.
The allegations were that Sheeran and his co-writer Amy Wadge “copied and exploited, without authorisation or credit Lets Get it on, including but not limited to the melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping”.
According to a BBC report, a judge had denied Sheeran’s efforts to dismiss the case, ruling instead, that the similarities between his song and that of the late Motown singer/songwriter’s, must be decided by a jury.