Caribbean Rhythm and Rights: U.S. Copyright Law Protects the Song, not the Sound

U.S. copyright law has not always equally upheld the rigid provisions established in landmark music cases. When the law lacks cultural competency, some genres are exploited while others are protected. Since Caribbean musicians’ ideas and expressions are often intertwined, new precedents must be established to protect this unique sound.

Caribbean music genres are united by their cultural richness while nuanced in various countries’ distinct contributions. This reality is evident in U.S. copyright litigation as Caribbean artists work to establish clear boundaries surrounding sampling and influence. In 2021, two Jamaican producers, Cleveland Browne and the late Wycliffe Johnson (“Steely and Clevie”), filed a lawsuit against over one hundred reggaeton artists for copyright infringement of a drum rhythm from their track, “Fish Market”. Edvard Pettersson, Reggaeton Artists Challenge Originality of “Dembow” Rhythm in Copyright Battle, Courthouse News Serv. (Dec. 19, 2025), https://www.courthousenews.com/reggaeton-artists-challenge-originality-of-dembow-rhythm-in-copyright-battle/. The instrumental piece in question incorporated uniquely layered percussive elements that the producers accused the artists of wrongly copying and using as dembow beats. Id. Stephen Doniger, representing the producers, concedes that “Fish Market” incorporates a common habanera rhythm, which is not copyrightable on its own. Id. However, Doniger claims Steely and Clevie layered additional percussion elements, which made the arrangement distinctly original and thus copyrightable. Id. The judge in the ongoing disputes denied the defendants’ motion to dismiss the producers’ lawsuit, recognizing the importance of determining whether any of the works were original enough to warrant copyright protection. Id.; Complaint, Browne v. Donalds, No. 2:21-cv-08295 (C.D. Cal. filed Oct. 13, 2021), https://dockets.justia.com/docket/california/cacdce/2:2021cv08295/834483. While the dissemination of cultural influence continues to add to the world of music, the law often fails to keep up with rapid developments. New precedents relying on longstanding intellectual property principles while accounting for novel cultural questions must be set. 

Steely and Clevie was a Jamaican producer duo who recorded the drum arrangement of their track “Fish Market” released in 1989. Steely and Clevie argue that while the beats did exist prior to their arrangement, their specific sound composition is original and thus warrants copyright protections. David J. Lutzker, Introduction to Music Copyright, Lutzker & Lutzker LLP, https://www.lutzker.com/insights/introduction-to-music-copyright/ (last visited Apr. 12, 2026). Under Jamaica’s Copyright Act 1993, copyright automatically protects original musical works once recorded and grants creators exclusive rights of reproduction, distribution, and public performance. As Jamaica and the United States are both members of the Berne Convention, Jamaican musicians’ works are also protected in the U.S., and their rights can be enforced through licensing or legal action upon infringement. Music Copyright, Jamaica Intellectual Prop. Off., https://www.jipo.gov.jm/node/47 (last visited Apr. 12, 2026). Music recordings generally involve two separate copyrights: musical compositions protecting the underlying composition and sound recordings protecting the recording itself. U.S. Copyright Office, Sound Recordings and Musical Works (Feb. 2020), https://www.copyright.gov/music-modernization/sound-recordings-vs-musical-works.pdf. Musical composition copyrights apply to the composer and lyricist, while sound recording copyrights apply to the performers and producers of a specific recording. Traditionally, U.S. law has treated these two forms of copyright differently. Id. 

In accordance with the typical processes for rectifying copyright infringement in the U.S., Steely and Clevie filed a lawsuit against over one hundred popular reggaeton artists including Bad Bunny, Daddy Yankee, and Pitbull. Lutzker, supra. The producers’ counsel claims the common habanera rhythm in question became protectable when the producers layered additional percussion elements that made the arrangement distinctly original. Pettersson, supra. Reggae is a genre that originated in Jamaica in the 1960s, defined by its off-beat syncopated rhythm and strong roots in African, jazz, and rhythm and blues influences. Reggaeton is distinct in its rap-based style and development in Panama and Puerto Rico but is also deeply rooted in Jamaican reggae. Reggae and Reggaeton: Same or Different?, Havana Music School, https://havanamusicschool.com/reggae-and-reggaeton-same-or-different/ (last visited Apr. 12, 2026). Specifically, the “Dem Bow” rhythm was first produced by Jamaican dancehall DJs Steely & Clevie in the early 1990s, highlighting the foundational influence of Jamaican music on the genre’s sound and structure. Id. Counsel for the artists accused of infringement argue that the allegations are insufficiently specific, leaving them uncertain of which of their musical works that allegedly sampled the beat in question are under fire. Pettersson, supra. Expert witnesses for both parties continue to battle in court to determine whether the Jamaican producers’ drum arrangement even meets originality standards to support their claims that thousands of reggaeton songs breached their valid copyright protections. Id. If the producers emerge victorious, sampling rules within the music industry may become stricter and artists will be compelled to sample beats far more cautiously. Lutzker, supra. This pending decision builds on principles distilled from prior cases disrupting a previous era of largely unregulated sampling.  

In the past three decades, copyright landmark cases have cracked down on unchecked use and altered the music landscape forever. In 1991, a revolutionary holding mandated that all music samples must be cleared by their rightful owner, and releasing sampled material for commercial purposes prior to obtaining the requisite consent may constitute copyright infringement. Grand Upright Music Ltd. v. Warner Bros. Recs., 780 F. Supp. 182, 185 (S.D.N.Y. 1991). A letter from rapper Biz Markie’s legal team to Gilbert O’Sullivan requesting permission to sample his original composition “Alone Again Naturally” substantiated the court’s finding of copyright infringement; prior to receiving a response from O’Sullivan authorizing use, Biz Markie’s album was released. Id. at 184. The court emphasized that the rapper’s team was clearly aware of the original composer’s valid copyright and breached it regardless. Id. at 185. This groundbreaking case labeled Biz Markie’s team’s actions as callous disregard for the law, broadly deterring unauthorized copying in the music industry. Id. However, recent technological advancements and cultural diffusion call for increasingly precise regulations for exclusive rights, and sampling standards. From music created by generative AI to emerging genres drawing on various cultural influences, the law sometimes fails to match the pace of the quickly developing music production world. The Impact of Technology on the Musical Experience, Nat’l Ass’n for Music Educ., https://www.music.org/cms-reports/celebrating-the-40th-anniversary-of-the-museum-of-modern-art-tape-music-concert/the-impact-of-technology-on-the-musical-experience.html (last visited Apr. 12, 2026). 

While the law has firmly held that literal copying of a song constitutes a copyright infringement, it has yet to take a clear stance on whether a distinct sound is protectable or not. Producers Steely and Clevie’s allegations surrounding their layered drum beat over an existing rhythm raise novel questions for the court and suggest larger implications for the industry. The producers’ own complex sampling history in creating “Fish Market” involves elements from work by dancehall artist Shabba Ranks among others; the song’s history reveals a convoluted chain of sampling that highlights the question of who truly owns the sound itself and every individual layer of it. Pettersson, supra. 

In 1994, the Supreme Court assessed fair use factors to balance protecting owners’ exclusive rights with other artists’ creative freedom. Acuff-Rose Music, Inc. sued popular rap group, 2 Live Crew and their record company alleging that the group’s song “Pretty Woman” infringed on Acuff-Rose’s copyright in Roy Orbison’s “Oh, Pretty Woman”. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The court held that 2 Live Crew’s commercial parody of the song was fair use within the meaning of Section 107 of the U.S. Copyright Act of 1976. Id. The four fair use factors are the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect of the use in the potential market. See Copyright Act of 1976, 17 U.S.C. § 107. The court held that despite being for commercial purposes, 2 Live Crew’s parody was a form of commentary and criticism, and the artists could therefore claim fair use. See Campbell, 510 U.S. at 593. The nature of Acuff-Rose’s copyrighted song was irrelevant to resolving this dispute. Id. at 569. The court clarified that amount copied is assessed by evaluating the substantiality of the part used relative to the whole copyrighted work. Id. Finally, the court also found that the effect of the use on the potential market depends on market substitution. Id. at 569. Fair use analysis will likely arise in Steely and Clevie’s ongoing lawsuit. The court’s findings on each of the factors will determine whether the accused artists’ use was fair or unlawful. 

Copyright laws exist to protect original work without stifling further creativity. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005) (referring to 17 U.S.C. § 115). The music industry and courts would greatly benefit from a brightline test to clarify actionable infringement, especially regarding digital sampling of copyrighted sounds. Id. at 798. Steely and Clevie’s drum arrangement might be original enough to warrant protections and deem reggaeton artists’ use of the drug arrangement to be unlawful. However, copyrighting the arrangement might unintentionally create “an impermissible monopoly over a basic musical building block.” Structured Asset Sales, LLC v. Sheeran, 673 F. Supp. 3d 415, 424 (S.D.N.Y. 2023). The Sheeran case delved into avoidance of undue injustice, discussing the harms of upholding exclusive protections for basic musical elements and foundations like a common chord progression or harmonic rhythm. Id. The court’s looming decision bears the power to shake the music industry for good while further defining the bounds of copyright protections and regulations.