Classical Notes

Who Really Wrote That Song?
(A Tale of Copyrights and Wrongs)

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Suppose one morning you woke up, got out of bed, dragged a comb across your head and heard the news today, oh boy, that Ringo claimed to have written the entire Beatles catalog? Well, you'd just have to laugh - or think it was an awfully weird dream.

While rock icon Chuck Berry is no stranger to the law, even he may have been startled by his latest legal headache - a suit in which Johnnie Johnson, his long-time former pianist, claimed to have co-authored most of his hits.

Johnson had launched Berry's career in 1953 by hiring Berry to front his band but over time their roles and fortunes swapped. Berry honored his mentor in “Johnny B. Goode” and rose to the pantheon of rock stardom while Johnson, whose rapid-fire piano runs propelled many of Berry's great records, wound up driving a bus. In November 2000, he sued Berry for his share of credit and royalties. (For more on this fascinating lawsuit, please click here).

Although the claim seemed awfully late, it was bolstered by Rolling Stone Keith Richards and others, who had noted for years that many of Berry's songs were written in keys that seem far more comfortable on a keyboard than on a guitar. And it's plain to hear that while some songs in the Berry canon derive their power from slashing guitar figures (“Roll Over, Beethoven,” “School Days,” “Carol”), others have more of a keyboard feel and sound (“Beautiful Delilah,” “Nadine,” “Blue Feeling”). Notably, among the fifty songs Johnson claimed to have written is “Sweet Little Sixteen.” And there lies a tale.

“Sweet Little Sixteen” itself was blatantly copied as “Surfin' USA,” the Beach Boys' first top-ten hit. Indeed, when “Surfin' USA” appeared on the Best of the Beach Boys LP Berry was credited as the composer and in liner notes to the current CD reissue of their first album Beach Boy founder and resident sage Brian Wilson rhapsodizes over how the Berry original inspired him to craft his own version.

But this is revisionist history. When the “Surfin' USA” 45 scaled the charts in 1963 the sole author had been identified quite differently - none other than Brian Wilson. What had happened since then? A twinge of conscience? A heartfelt gesture to share the vast riches of rock with an influential but neglected forbear? Hardly. Berry's publisher had sued and emerged in settlement with the writing credit.

OK, rock and roll was an evil and greedy business. We all know that. But how about the wholesome purity of folk music? Mark Twain once quipped that a folk song is a song nobody ever wrote. Many folk artists, though, have tried their best to remedy that. Thus Sixties superstars Peter Paul & Mary claimed authorship of “This Train” on their first album and “Go Tell It On the Mountain” on their second, even though both songs had been recorded while they were still in diapers by Sister Rosetta Tharpe (who was hardly above such things herself, having taken credit on her own record of “Down By the Riverside” for having written that venerable spiritual). Or consider “Wimoweh,” popularized in 1952 by the Weavers (who awarded its authorship to a pseudonym for their group) and later in 1961 as “The Lion Sleeps Tonight” by the Tokens (who, in turn, claimed the writing credit for their two producers), even though it had been cloned from a Zulu song recorded in South Africa in 1939. And so it goes.

So, what's the point? Are all pop artists conniving thieves? Of course not. Often, it's merely a question of common economic sense - if a song is so old or its history so tangled that its origins can't reliably be established, royalties are there for the taking and someone might as well pocket them. While a modern artist or producer may not be especially deserving, who's to harm? That's different, of course, from that other time-honored but honorless tradition of forcing na´ve and powerless artists to yield writing credits as the price of airplay and exposure. Thus, DJ Allan Freed became co-author of the Moonglows' “Sincerely” and record exec George Goldner “wrote” many of Frankie Lymon and the Teenagers' hits.

It's easy to sneer at these blatant examples, but the issue of authorship can be far more complex. In an especially troubling case, ex-Beatle George Harrison had to pay nearly $600,000 in damages for having plagiarized the Chiffons' 1963 “He's So Fine” in his 1971 “My Sweet Lord.” At trial, Harrison conceded that he knew the Chiffons' tune (it was a hit both in England and the US) but steadfastly denied any intentional copying, swearing instead that his song arose from riffing with Billy Preston in a hotel room. The Court accepted his explanation, but nonetheless found him guilty of “subconscious” imitation.

The Court's equating the two songs was absurd. Beyond the first three notes and superficially similar second phrases, the records reveal significantly different structures, melodic development, choruses, tempos, instrumentations and background vocals. The Judge (himself a composer) even conceded that a tell-tale grace note that he cited as the definitive link between the two songs arose only in a demo and is nowhere to be found in Harrison's printed music nor heard in his record. All told, it's awfully hard to mistake the Chiffons' ditsy teen-angst doo-wop (“doo lang doo lang doo lang”) for Harrison's ardent religious meditation. Yet, the Judge concluded that 75% of the success of “My Sweet Lord” was due to having copied the melody of “He's So Fine” and ordered the royalties divided accordingly.

Harrison unsuccessfully fought the case through several appeals, but a more refreshing approach had been taken a century earlier by Johannes Brahms, whose first symphony was dubbed by a critic as Beethoven's Tenth. In a way, the title was flattering, presenting Brahms as the artistic heir to the greatest symphonist of all. Yet, it was also derisive, as detractors pointed out the striking similarity of the chorale theme of the last movement of the Brahms to the famous “Ode to Joy” of the finale of the Beethoven Ninth. Reportedly, when chided about this Brahms would snarl something to the effect that, “So what? Any fool can hear that!” (Lucky for him that Beethoven's attorneys weren't around to sue!)

Brahms's attitude wasn't just an eruption of artistic temper but signals an essential sense of history. It's been said that there are only a half-dozen elemental themes in literature and that all the great books, poems and plays ever written are mere variations. So with Western music, which is based upon a handful of common assumptions. Melodies and chords coalesce around certain intervals, harmonies evolve, rhythms develop and structures progress in certain ways because we find them pleasing or expressive. It's not just a question of custom and training - relations among tones correspond to the laws of physics (ie: a standard chord is an overtone series), our rhythmic preferences are driven by physiology (ie: a stirring march is an elevated heartbeat) and favorite forms mirror the vicissitudes of our emotions.

It also has been said that all you need for rock and roll (and much other pop) is a guitar and three chords. If that's true then, at least according to the thinking of the Chiffons court, whoever first thought of those three chords is owed billions in royalties. As for “He's So Fine” and “My Sweet Lord,” a descending motif followed by a rising one is so commonplace that it seems inconceivable (outside the courtroom, at least) that anyone could claim it to be genuinely original. Indeed, the precise motif at issue here (G-E-D) had been used as a main theme over a century ago both by Brahms in his Clarinet Quintet, Op. 115 and by Ernest Chausson in his Symphony in B-flat.

Musical copyrights are fundamentally unfair. Novelty is at best a matter of degree. A typical melodic phrase or harmonic progression owes far more to its predecessors than many artists (and their copyright lawyers) care to admit. Because of the strength of convention, few who sit down to write something “new” can escape the powerful influences of the past, which invariably guide our thinking and control our output.

Many of the early copyrights were simply a matter of having been in the right place at the right time. And in this case the right place was a studio and the right time was the dawn of radio and the recording industry. Musicologists have traced many of the earliest recorded (and hence copyrighted) folk and blues songs to much earlier, and often oral, sources. Most such songs were largely derived from the musical traditions in which the artist had been raised. When an artist we revere as one of the “roots” of our culture made a record, he may have claimed the copyright even though his song wasn't all that original. Without actual evidence of a previous version, challenges were rare.

Copyright has changed our entire way of thinking regarding the nature of musical invention and has reshaped our cultural history. Thus, of the first country stars to record, Gid Tanner and Riley Puckett made no pretense of having written the material they waxed, while A. P. Carter claimed authorship of nearly all the Carter Family records, even though he was more a compiler and stylist than a composer as such, having collected and arranged verses and tunes that were prevalent among Virginia mountain folk. Yet, Tanner and Puckett were soon forgotten as mere performers while Carter, abetted by his huge catalog of copyrights, will forever be remembered as a prolific writer of seminal music. The difference was more a matter of opportunism than a fair measure of genuine invention.

And what about Chuck Berry? He's widely acclaimed as one of rock's true originals and one of its most prolific and formidable composers, but who really wrote his songs? Perhaps both Berry and Johnson are so irretrievably indebted to their legions of forbears that the real origins of these songs are forever shrouded in the mists of time and properly belong to that most original author of all - Anonymous.

So roll over, Chuck Berry, and tell the Beach Boys the news!

Johnnie Be Suing

Ultimately, it was up to the courts to decide if Chuck be bad to Johnnie B. Goode.

The basic facts of the Johnson-Berry relationship are well known. Berry was a St. Louis hairdresser with musical ambitions who was playing in local clubs when Johnnie Johnson gave him his big break to join his trio as a last-minute replacement for his guitarist for a New Years Eve gig in 1953. Muddy Waters brought them to the attention of record mogul Leonard Chess and the rest was history. It was a history in which Johnson's pianism played an integral part - you can hear him distinctly in most records and he's often more prominent than Berry's guitar.

Johnson's career soared by hitching his star to Berry's charisma, but fame carried a cost as the former bandleader was pushed increasingly into the background. Thus, by the time of their first record the Johnnie Johnson Trio (also known as the "Sir John Trio") had become "Chuck Berry and his Combo." Six releases later, the labels just read "Chuck Berry."

While Berry became an icon of rock, his life wasn't a constant joyride. He spent much of 1959 in court and then the hits dwindled, resurging only briefly in 1964 after he emerged from the second of his four jail terms. In 1966, Berry split with both Chess and Johnson. His career then became largely a self-parody - he cut inferior remakes of his hits, played perfunctory sets with unrehearsed local bands and scored his only new hit with "My Ding-a-Ling." (In fairness, though, the success of that abysmal song says as much about the state of rock in the early '70s as it does for the depth to which Berry's former wit and invention had plunged, but that's another story.)

Now fast forward to November 29, 2000, when the lawsuit of Johnnie Johnson v. Charles E. Berry and Isalee Music Company was filed in the U.S. District Court for the Eastern District of Missouri. In his complaint, Johnson claimed that for all but two of Berry's hits through 1966 (and most flip sides and album cuts as well), Berry wrote poems which he and Johnson then put to music. (The principal exceptions were "Maybellene," derived from Bob Wills' "Ida Red," and "Johnny B. Goode," which Berry intended as a tribute to his then-loyal pianist.) Johnson further claimed that Berry exploited his gentle nature and naivete by deceiving him into believing that the only compensation to which he was entitled was his fee as a musician during recording sessions. In his suit, he claimed half of the tens of millions of dollars in royalties, license fees and other payments that the Berry catalog had generated.

The prospect of the case going to trial was intriguing, as juries often side with the perceived underdog. Johnson's attorneys portrayed him as a brilliant musician but an exceedingly modest man "without an angry bone in his body." His story of humility, faithfulness and misplaced trust had loads of human appeal, especially in contrast to Berry, who was apt to come across as rich, aloof and sleazy and whose extensive criminal record was unlikely to garner much sympathy.

But, you may well ask, how can anyone sit on his rights for so long? Well, they can't. Indeed, this case never got to a jury. Beyond denying Johnson's allegations, Berry's attorneys moved to dismiss the suit for violating the statute of limitations.

Recognizing that memories fade and evidence disappears, this legal principle states that a claim must be brought within a relatively brief period after the facts occur or it's too late. The applicable deadline is three years for a copyright claim and five for fraud. If a litigant misses by a few weeks, courts can cut a little slack, but forty years - awfully unlikely! (Although they believed that some similar cases had been settled, Johnson's attorneys couldn't cite a single instance in which the statutory deadline had been extended for anywhere near as long as they had sought.)

Recognizing this problem, Johnson's attorneys relied on an exception that tolerates a certain amount of delay in bringing suit if a claimant was legally incapable - but only up to the point where the disability is lifted or where he should have recognized his rights. For example, Hank William's illegitimate daughter (born five days after he died and sheltered by her adoptive parents) was excused from staking a claim to a share of her father's royalties until she learned of her parentage, but not for the eleven additional years which passed before she filed suit. And two of the aptly named "Teenagers" were not expected to have asserted authorship of "Why Do Fools Fall in Love" until they became adults, but then waited too long after that to press their claim.

Johnson's attorneys claimed that since the late 1940s he was incapacitated as an alcoholic. In the words of the complaint,

For decades thereafter Mr. Johnson suffered the physical, emotional and mental symptoms and consequences of this disease which rendered him unable to comprehend the magnitude of his musical contributions or the ownership rights to the music he created with Mr. Berry. Only recently has he realized that he, in fact, has an ownership interest in the Berry/Johnson songs.

I'm not a psychiatrist, so I can't fully assess this claim, but there seemed to be a severe credibility problem here. Johnson may have been na´ve, deceived, alcoholic or downright stupid, but he didn't pass the last half-century in a cocoon or a coma. Rather, he played with a wide variety of professionals, cut several albums and appeared in movies. While he never rescaled the heights he attained with Berry, his activities extensively exposed him to the commercial realities of the music business. Was it really possible that during this entire time the thought never once crossed his mind that people get paid for writing songs? Didn't he ever wonder who got all the performance license fees he presumably had to pay as a bandleader, or the writer royalties for his own half-dozen solo albums? Even if he had never read it, surely he had heard about the 1987 autobiography in which Berry devoted an entire chapter to detailed descriptions of how he wrote his hit songs (with only a single passing mention of Johnson, and then only as inspiration for "Johnny B. Goode"). (Curiously, though, Berry's account dwells almost entirely on the lyrics.) And what about the 1987 movie Hail! Hail! Rock 'n' Roll which depicted Johnson as a primary contributor to the genre in general and to Berry's music in particular?

In July, 2001, Judge Stohr ruled upon the motion to dismiss. Dismissal of a lawsuit is appropriate only when it appears beyond doubt that the plaintiff could not possibly prove his case at trial. In assessing such a motion, the court must take the complaint at face value and construe all evidence in the light most favorable to the plaintiff. On that basis, the Judge was unwilling to completely discredit Johnson's claims that alcohol had disabled him or that Berry misled him concerning his legal rights. After reviewing past precedent, the judge concluded that the law was quite complicated and dependent upon the specific facts of each prior case. He found that the outcome would depend upon evidence to be developed through testimony and more extensive legal arguments which both sides would be expected to present. At that point the case seemed bound for a November, 2002 trial.

Since he had to rely on the oblivion of alcoholism to excuse his delay, the reliability of Johnson's own recall of events 40 years ago would be subject to severe doubt, and so he would need some credible witnesses to substantiate his claims. The most fundamental of these claims is that he actually wrote the songs. His attorneys intended to rely on testimony of a transcriber, who was needed since neither Berry nor Johnson could write music. But what did he observe (and of that how much does he still remember)? The mere fact that Johnson played him a song doesn't mean he wrote it. Did he experience the contributions and interplay of two composers trying out riffs and ideas as the piece emerged?

In the probable absence of conclusive direct evidence of how the songs arose, expert witnesses would likely have been called to infer the process from musical hints. I'm no authority here either, but it seemed that this was the area in which Johnson's claims might not have been so far-fetched. As Keith Richards and others have often pointed out, many of the Berry songs are in "piano" rather than "guitar" keys (but were they transcribed?). More important, many of the songs have a pronounced piano feel to them - just think of the barrelhouse pounding of "Nadine," the wild keyboard runs in "Sweet Little Sixteen" or the bluesy filigree of "Wee Wee Hours" - these just sound like they were conceived for the ivories.

In fact, "Wee Wee Hours" presents a special case - it's the only song whose genesis Johnson specifically described (and claimed as his alone). According to the complaint, this was an original untitled instrumental blues that Johnson had played since the late 1940s; then at the first recording session Johnson suggested it as the flip side to "Maybelline," Berry wrote simple lyrics, they recorded it and Berry copyrighted the song in his own name. But listen to it - the melody is purely vocal and the piano part is swirling background accompaniment. How did it sound when Johnson played it before he ever met Berry? Was it the same composition then?

In October 2002, with the benefit of discovery that had been conducted, the Judge dismissed Johnson's lawsuit before trial, holding that too many years had passed since the alleged injury. He rejected the claim that the delay should be excused due to mental incompetence and alcoholism, noting that throughout his career Johnson had lived independently and managed his affairs. Indeed, Johnson may have ruined his own case by denying in a deposition that he was impaired and by claiming instead that he simply couldn't afford an attorney to bring suit. Berry's lawyer claimed that the superstar holds no grudge against his former sideman, blaming Keith Richards and Bo Diddley (!) for encouraging Johnson to pursue his claim.

So, what's the real story here? Is Johnson one of the true founders of rock, cruelly deceived by a cunning ingrate who stole the fruit of his abundant talent? Or was he caught up in a scheme to wrest well-deserved fame and fortune from a vulnerable superstar? If there's one absolute I've learned as a lawyer, it's this - the truth probably lies somewhere in between. But just where will remain a secret that Berry and Johnson may take to Rock and Roll Heaven.

A final update – Johnnie Johnson died on April 13, 2005. In its obituary the following day, the Washington Post noted that, while his lawsuit had been dismissed, Johnson had won another fight for recognition, as he had been inducted into the Rock and Roll Hall of Fame in 2001, when a new category for sidemen was added. The obit went on to recall him as "a rollicking thriller on the ivories," noted his "complex relationship with Berry," and stated that he "helped craft Berry's most famous songs." Perhaps that's a fitting last word as to how Johnson should be judged by history, if not by the courts.

Peter Gutmann

Copyright 2001, 2002 and 2005 by Peter Gutmann

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