Bad Bunny performing live. Photo Credit: Comecoquito
The “Frankenstein” reggaeton lawsuit against Bad Bunny and a multitude of others isn’t finished yet. Weeks after suffering a serious setback in the marathon case, the plaintiffs are urging the presiding judge to reconsider his “unjust” and “inconsistent” ruling.
We covered that ruling closer to September’s start, when arguments from Bad Bunny’s counsel convinced Judge André Birotte Jr. to reverse an earlier summary judgment determination.
Those arguments centered on the idea that the filing parties, reggae pioneer Cleveland Browne and the estate of Wycliffe Johnson, had cobbled together “Frankenstein” infringement claims due to the absence of the relevant musical elements in a single work.
Specifically, the plaintiffs were “asserting exclusive rights in a ‘Frankenstein’ combination pieced together from three different works…none of which contains all of the required seven ‘Fish Market Elements,’” according to Team Bad Bunny.
As some will recall from our prior coverage, Browne and Johnson wrote and recorded “Fish Market” as Steely & Clevie; a follow-up release entitled “Dem Bow” added vocals, and a derivative effort entitled “Pounder Riddim” followed, according to the plaintiffs.
From there, “Pounder” is said to have achieved significant commercial success en route to finding its way into all manner of other releases without permission – hence the legal battle and the lengthy defendants list.
But as DMN broke down in detail, Bad Bunny’s argument did the trick: “Because Plaintiffs have not identified a single copyrighted work containing the alleged protectable selection and arrangement, Plaintiffs cannot, as a matter of law, proceed on the theory presently pleaded,” Judge Birotte summed up.
And in reaching the conclusion, the court further granted the “DtMF” artist’s motion for partial summary judgment. Unsurprisingly, the development isn’t sitting right with the plaintiffs, as demonstrated by their more than 25-page motion for reconsideration or clarification.
Like the case itself, this motion is easy enough to boil down but also touches on a number of angles that can be analyzed at length if so inclined.
In short, there’s allegedly no “Frankenstein combination” to speak of: The court previously acknowledged “a protectable selection and arrangement in Fish Market,” and the other two above-noted releases simply incorporated the same allegedly infringed elements, the plaintiffs indicated.
“Contrary to the Court’s conclusion, Plaintiffs have not isolated elements from disparate, non-adjacent portions of Fish Market and reconstituted them into a new combination invented for this litigation,” they explained. “Rather, every element comprising the claimed selection-and-arrangement exists contiguously in the Fish Market composition, exactly as Browne and Steely wrote and recorded them.”
“The other works at issue, Dem Bow and Pounder Dub Mix II were not used to contribute elements to Fish Market’s composition. Rather, they are derivative of Fish Market and incorporate its same composition,” the plaintiffs drove home, adding for good measure that their “compositional claims have always rested on one work, Fish Market.”
Elsewhere in the filing, Browne and the Johnson estate reiterated their “unequivocal percipient and expert testimony confirming the elements of the Fish Market composition” and criticized “the entire motion for reconsideration” as “a red herring.”
In support of the position, the plaintiffs underscored “that the Copyright Office deposit copy for Fish Market…establishes what is at issue in this case.”
“Any ‘confusion’ as to what comprises Fish Market or what is at issue in this case can be cleared up by listening to that recording, which naturally includes the elemental combination,” they continued. “Any disagreement as to what compositional elements are in that recording are questions of fact for the jury.”
With that, all eyes are on the judge’s response to the motion for reconsideration, which is specifically looking to reinstate the prior summary judgment order and is tentatively scheduled to receive a hearing in late October.