A US federal judge has thrown out the copyright theory at the center of the lawsuit that accused Bad Bunny, Drake, and more than 150 other artists of copying the “dembow” rhythm used across reggaeton.
Judge André Birotte Jr. ruled on Tuesday (September 1) that the plaintiffs had failed to identify a single copyrighted work of their own that contains the combination of elements they are trying to protect.
The order reverses the decision Birotte issued on July 1, which had left the protectability of the rhythm for a jury to decide. It can be read in full here.
The case was brought in 2021 by Cleveland “Clevie” Browne and the heirs of Wycliffe “Steely” Johnson, who say their 1989 track Fish Market is the source of the percussion pattern that runs through reggaeton.
Their claim covers nearly 2,000 tracks, among them Despacito, Tití Me Preguntó and Dame Tu Cosita.
In his July 1 order, Birotte found that the two sides’ experts disagreed so fundamentally that only a jury could settle whether the rhythm is original and protectable.
Bad Bunny and his label Rimas Entertainment asked him to think again on July 15, arguing that the combination the plaintiffs describe does not exist in any one work they own.
Other defendants lined up behind that motion, among them Drake and his OVO Sound label, UMG Recordings, Empire Distribution, Maybach Music Group, Rich Music, and Cinq Music Group.
Birotte heard argument on August 14 and has now sided with them.
He vacated the part of his July 1 order that had denied the defendants summary judgment, and granted it to them on the selection and arrangement theory instead.
Birotte also granted all 10 requests from other defendants to join the motion, so the ruling covers those defendants too.
“Plaintiffs have not clearly identified what copyrighted work contains the allegedly protectable selection and arrangement they seek to enforce,” wrote Birotte.
“Plaintiffs have not clearly identified what copyrighted work contains the allegedly protectable selection and arrangement they seek to enforce.”
André Birotte Jr., US District Judge
The plaintiffs own the Fish Market composition and recording, the Dem Bow composition and the Pounder (Dub Mix II) recording, Birotte noted, but not the Pounder (Dub Mix II) composition.
“The difficulty is that the record does not establish that the two-bar transcription appearing in the [complaint] – or, more broadly, the complete selection and arrangement Plaintiffs seek to protect – exists in any one of those copyrighted works,” Birotte’s order states.
Birotte said the plaintiffs cannot assemble the work they are suing over out of pieces of several different works.
“The fact that the constituent elements may be drawn from, or may separately appear in, other works does not permit a plaintiff to reconstruct a new purported copyrighted work by aggregating portions of multiple works and then treat that reconstructed combination as the subject of copyright protection,” wrote Birotte.
Doing so, Birotte wrote, would amount to “an attempt to create the asserted copyrighted work through the litigation itself.”
He pointed to the August 14 hearing, at which the plaintiffs for the first time stated more definitively that the complete two-bar pattern set out in their complaint exists in Fish Market itself.
“The shifting explanations are significant because they underscore that the parties have not merely disputed the factual characteristics of the Claimed Works; they have disputed what the asserted copyrighted work actually is,” wrote Birotte.
Birotte ruled that identifying which work defines the copyright is a question for a judge, not a jury.
“The jury cannot determine which collection of elements, drawn from one or multiple works and rearranged, constitutes the copyrighted work in the first place,” wrote Birotte. “Doing so would invert the copyright analysis by allowing the factfinder to define the subject matter of the copyright before determining whether that subject matter is protected.”
The scope of the claimed work, Birotte added, cannot “remain fluid throughout litigation.”
The practical effect is that the theory that has driven the case for more than five years cannot go to a jury in its current form.
“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,” Birotte wrote.
Birotte did not rule on whether the rhythm itself is original.
“To be clear, the Court does not hold that every protectable selection and arrangement must consist of a continuous two-bar musical phrase or that derivative works may never be relevant to proving originality,” wrote Birotte. “Nor does the Court decide whether Plaintiffs’ alleged rhythmic elements, viewed individually or collectively, are original.”
The order does not deal with damages. Before the ruling, Billboard reported in July that the case had “hundreds of millions of dollars in potential damages at stake.”
The lawsuit is not over, and the parties have been ordered to meet within 30 days to discuss a schedule for the claims that remain.
A joint plan, or competing plans, must follow within a further 15 days.
Claims over the alleged copying of the plaintiffs’ sound recordings were not decided, and Bad Bunny’s motion had acknowledged that those would still have to be litigated.
Birotte also refused the fallback request in that motion, which had asked him to send the question straight to the Ninth Circuit if he declined to reconsider.
Lawyers for Steely & Clevie and for Bad Bunny had not issued public statements on the order at the time of publication.
The reasoning leans on the 2020 appeals court decision that cleared Led Zeppelin over Stairway to Heaven, which MBW reported at the time.
Birotte quoted its finding on scattered similarities presented as a combination: “Labeling them a ‘combination’ of unprotectable elements does not convert the argument into a selection and arrangement case.”
The decision fits a run of US court rulings narrowing what a rights-holder can claim to own in the shared building blocks of a song. Ed Sheeran beat two suits alleging that Thinking Out Loud copied Marvin Gaye’s Let’s Get It On, and the US Supreme Court refused to revive the second of them in June 2025.
The dembow ruling also lands as Bad Bunny fights claims elsewhere.
Puerto Rico’s Supreme Court ruled on July 8 that his former partner Carliz De La Cruz Hernández can pursue a claim seeking at least USD $40 million over the “Bad Bunny baby” voice tag used on Dos Mil 16, from Un Verano Sin Ti.
Tainaly Serrano Rivera sued the artist and Rimas for $16 million in January over the alleged unauthorized use of her voice on his 2018 track Solo de Mí and on EoO, from the 2025 album Debí Tirar Más Fotos.
A separate copyright case over the Un Verano Sin Ti track Enséñame a Bailar was dismissed in March after the plaintiff stopped pursuing it.
Bad Bunny was Spotify’s most-streamed artist globally in 2025, with more than 19.8 billion streams.Music Business Worldwide
