El Mercado Del Pescado – The Dembow Fish Market Case: Browne v. Donalds

Introduction

The billion-dollar Latin music industry is facing its most formidable opponent yet: Steely & Clevie.[1] While this name may be unfamiliar, the musical duo has raised a crucial issue against a seemingly settled principle of copyright infringement: whether a rhythm is copyrightable.[2] The rhythm in question is reportedly an integral part of the entire genre of reggaeton.[3] Nonetheless, Steely & Clevie decided to sue over 100 Defendants—including Bad Bunny, the most streamed artist in the world—for copyright infringement across almost 4,000 songs.[4] Now, one copyright infringement case has the power to dictate the future of reggaeton and severely disrupt music law precedent.

Case Background

Cleveland Constantine Browne p/k/a Clevie (“Mr. Browne”) and Wycliffe Anthony Johnson p/k/a/ Steely (“Mr. Johnson”) created the duo Steely & Clevie under Steely & Clevie Productions Ltd.[5] In 1989, they produced and copyrighted Fish Market and Dem Bow, “an alternative mix of Fish Market, based on the same multi-track recording”.[6] The intricate Fish Market drum pattern is composed of:

a programmed kick, snare, and hi-hat playing a one bar pattern; percussion instruments, including a tambourine playing through the entire bar, a synthesized ‘tom’ playing on beats one and three, and timbales that play a roll at the end of every second bar and free improvisation over the pattern for the duration of the song; and a synthesized Bb (b-flat) bass note on beats one and three of each bar, which follows the synthesized ‘tom’ pattern.[7]

The resulting boom-ch-boom-chick pattern is the focus of Steely & Clevie’s copyright infringement suit against popular reggaeton artists with billions of combined streams.[8] The Complaint contends that “The foregoing combination of elements is original to Mr. Browne and Mr. Johnson and was groundbreaking upon its creation.”[9] The action further identified unlawful uses of the beat originating from Fish Market and Dem Bow.[10] The Plaintiffs claim that the Defendants allegedly failed to obtain licenses for use of the boom-ch-boom-chick pattern–commonly referred to as the dembow beat–within samples, interpolations, and copies.[11]

Copyrightability of a Rhythm

Under copyright principles, a rhythm is not usually copyrightable.[12] Feist Publications, Inc. v. Rural Tel. Serv. Co. describes that “to establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”^[13] Many famous infringement cases focus on the melody or lyrics to find substantial similarity due to the 1909 Copyright Act’s requirement that copyright registrations be accompanied with a deposit copy.[14] A deposit copy normally consists of the sheet music that clearly displays notes on a musical staff. However, it is rare to notate rhythms on sheet music.[15] “If someone wants to express a really complex rhythm …They’re going to clap their hands.”[16] Additionally, under the scènes à faire doctrine, it is long standing practice that non-copyrightable elements such as rhythms and chord progressions are unprotectable as elements of a generic nature.[17] Therefore, to move forward with the copyright infringement suit, the court must decide whether the dembow rhythm contains commonplace beats or is instead a unique arrangement worthy of copyrightability.[18]

Key Issues

The world has been awaiting a decision on motions for summary judgment in Browne v. Donalds since December 2025.[19] On July 1^st 2026, U.S. District Judge André Birotte ruled that the question of whether the dembow beat is copyrightable must go to a jury.[20] Since there were expert witnesses on both sides who presented facially credible evidence, there is a genuine dispute of fact, not law, for the court to decide.[21] Consequently, there are two prominent points that could become most at issue if the dembow beat is found copyrightable: the Copyright Act’s statute of limitations and the survival rate of reggaeton.

A. Statute of Limitations

17 U.S.C. § 507(b) declares, “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.”^[22] As of this article’s publication, the discovery rule is common law practice across all United States jurisdictions for determining when the date of accrual begins.[23] “The claim accrues when a diligent plaintiff discovers or should have discovered the injury.”^[24] Since the Supreme Court has yet to opine on whether the discovery rule should be applicable to copyright infringement cases nationwide, barring any changes, the discovery rule will most likely apply to future litigation in Browne v. Donalds.[25] If the dembow rhythm is found copyrightable, the Plaintiffs will then turn to recovering damages for copyright infringement. The Plaintiffs’ first hurdle would be the statute of limitations; if too much time has elapsed, it may not be permissible for all violations to be considered for damages. While many of the songs on Exhibit A of the Second Amended Complaint were within three years of the initial filing, a large portion were released prior to those three years.[26]

Can the Plaintiffs assert that the claim accrued within three years of the lawsuit filing? A similar question was asked in Hayden v. Koons which was decided on July 21^st, 2026.[27] There, the court ruled that the disputed works were reasonably discoverable more than three years prior to when the plaintiff filed the action.[28] The judge clarified:

To be clear, our consideration of Koons’s fame and related media coverage does not, as Hayden suggests, create some form of “celebrity privilege,”… because our analysis does not hinge on Koons’s fame alone. Instead, widespread news coverage, international fame, and long-lasting popularity are just some of many factors to consider. We do not expect a reasonable copyright holder to scour the news, comb through the internet, or keep apprised of pop culture. At the same time, however, the discovery rule does not allow plaintiffs to bury their heads in the sand, ignore widespread international media coverage of allegedly infringing art, and then sue for potential infringement some thirty years later.[29]

Coincidentally, Hayden v. Koons and Browne v. Donalds have similar timelines. Both deal with infringements from thirty years ago and include highly publicized works that have garnered attention in their country of origin—and in the case of Browne, the entire world.[30] For example, Bad Bunny is deemed the most-streamed artist in the world and just concluded a sold-out world tour.[31] Many of the other Defendants have a similar caliber of popularity across the globe. Unlike in Warner Chappell v. Nealy, a case where the plaintiff was imprisoned during the years of active infringement with limited access to potential content, Steely & Clevie have no such extenuating circumstance.[32]

B. Survival Rate of Reggaeton

If the jury decides the duo could not have reasonably discovered the infringements within three years of the filing date, all the Defendants could be infringing on the Fish Market dembow rhythm under the discovery rule.[33] Thirty years of reggaeton would be in the crosshairs and could potentially owe damages. In the wake of those proceedings, reggaeton would forever be strained. Each time an artist wanted to use the dembow beat, they would need to license that use from Steely & Clevie.[34] While the cost may not be material for large artists like Bad Bunny, new Latin artists would be stunted by the steep upfront cost. Without the guarantee of their return on investment, many may forego the additional hurdle. As a result, reggaeton, as a genre overall, could struggle to thrive.

Conclusion

With no sign of a settlement offer on the horizon, multiple appeals—and potentially a Supreme Court appearance—may be added to the docket. In the meantime, it is unlikely that major music companies will surrender without a fight. The stature of the Defendants only ignites heightened pressure to protect artists at the heart of reggaeton. Already in the first half of 2026, key industry players have banded together to guard creative rights in multiple landmark cases. On its current trajectory, Browne v. Donalds is poised to join Cox Commc’ns, Inc. v. Sony Music Ent. and BMG v. Resnik in reshaping the very foundations of music law.[35]

Catherine Stagliano is a Third Year Law Student at Benjamin N. Cardozo School of Law where she serves as Online Editor for the Cardozo Arts & Entertainment Law Journal. She is passionate about advancing her career in the music industry, with a particular focus on copyright litigation.