Wednesday, May 6, 2015

TMFW 87 - Tales of Copyright Silliness, Vol. 3: Run Through the Court System

Today's TMFW is the third in our series "Tales of Copyright Silliness," joining Men At Work's fight over two bars of "Kookaburra Sits in the Old Gum Tree" and The Verve getting royally hosed by The Rolling Stones' old manager.  It's the story of John Fogerty and his record label, who fought each other to the Supreme Court and back.  
Most TMFW readers will know that John Fogerty was the lead guitar player and lead singer for the late-60s, early-70s band Creedence Clearwater Revival.  CCR was an influential and hugely successful act - on top of nine top-10 singles, six of their seven studio records went platinum (the last went gold), five of their albums were top-10, and two of them hit number 1.  
Each of CCR's albums were released by the label Fantasy Records, a San Francisco imprint that was known primarily for jazz recordings by artists like Dave Brubeck ("Take Five") and Vince Guaraldi ("Linus and Lucy").  By the time CCR came on, Fantasy was principally owned by a guy named Saul Zaentz. Zaentz would go on to be most famous as a film producer - he won three Best Picture Oscars for producing One Flew Over the Cuckoo's Nest, Amadeus, and The English Patient, and he got the Irving G. Thalberg award in 1996.  
But when he was at Fantasy, Zaentz was like many record executives in those days and took as much advantage as he could of CCR's success.  That included signing them to a low-royalty contract (promising to renegotiate at some point in the future), locking them into long-term deals to preserve the label's piece, and convincing the band to funnel their royalties to a bank in the Bahamas as a tax-avoidance scheme. As you might guess, Zaentz did not renegotiate the royalties even when CCR became huge.  And far worse, the Bahamian tax shelter collapsed in the mid-70s and $8 million of CCR's money went with it.  
After CCR broke up in 1972, Fogerty recorded one solo album for Fantasy, which sold poorly.  By that time, he was thoroughly sick of Zaentz and wanted to move on.  But CCR still owed Fantasy 8 additional records, and Zaentz wasn't willing to let him go for free.  To get out from his recording obligations, Fogerty ultimately signed away the publishing rights to his songs and got some help from TMFW 42 subject David Geffen, who paid Fantasy $1 million in cash.  Fogerty released one album for Geffen's Asylum label, but it too was a commercial disappointment.  
Fogerty's career stalled after his second solo record in 1975, and he didn't release another one until 1985's Centerfield.  That album was a surprise hit: it reached number 1 in the US (and Norway and Sweden) and was top-5 in seven countries.  Fogerty's first single off of Centerfield was "The Old Man Down the Road," which (at long last) is the core subject of today's TMFW.
But first, just a little bit more to set the scene.  Among its 9 tracks, Centerfield featured two songs that were thinly or not-at-all veiled insults aimed at Saul Zaentz.  The first was "Mr. Greed" ("you're a devil of consumption, I hope you choke Mr. Greed" / "you feast upon the blood and pain, but the bones you hoard can only bring you shame") and the second was "Vanz Kant Danz" (originally named "Zanz Kant Dance" but changed after legal threats, anthropomorphizing Zaentz as a pig and featuring the refrain "Zanz can't dance but he'll steal your money, watch him or he'll rob you blind.")
If I have done this correctly, you understand well at this point that John Fogerty and Saul Zaentz were not friends in 1985.  When "The Old Man Down the Road" was released as the first single off of Centerfield, many people recognized a distinct similarity between that song and CCR's 1970 single "Run Through the Jungle."  That would make sense, as both of them were written and sung by Fogerty.  But recall that despite his authorship, "Run Through the Jungle" was no longer owned by Fogerty: he had signed it over to Zaentz years earlier to get out of his Fantasy contract.  So Zaentz, recognizing an opportunity both to make some money and to stick it to Fogerty, sued him for infringement.  In a California federal court, Fantasy Records sued John Fogerty for ripping off... John Fogerty.
If you listen to both songs, they do sound remarkably similar.  But at trial, Fogerty argued that lots of his songs done in the "swamp rock" genre sound similar, and played the guitar on the witness stand to demonstrate the differences between the two tracks.  The jury agreed, and returned a verdict in his favor. 
(What came next is some legal nerd stuff, but as a legal nerd I find it very interesting.)  Having won at trial, Fogerty then asked the court to order Zaentz to pay his legal fees, as the Copyright Act allows for "prevailing parties" to recover the cost of litigation.  The trial court refused, finding that Zaentz had not brought the case in "bad faith."  Fogerty appealed, arguing that if plaintiffs get legal fees as a matter of course, defendants should too and should not have to prove a higher standard of bad faith.  The court of appeals again sided with Zaentz, and Fogerty went to the Supreme Court of the United States.  
In the 1994 decision Fogerty v. Fantasy, Inc., the Supreme Court agreed with Fogerty and made new law, holding that successful defendants in copyright suits could get attorney's fees under the same standard applied to successful plaintiffs.  On remand, the court awarded him $1.3 million in fees.  Fogerty got the last laugh.  (And it probably sounded a lot like a CCR laugh.) 


BONUS FACT:  In 2004, Zaentz sold Fantasy to a group of investors.   One of their first signings after the purchase?  John Fogerty.

BONUS FACT 2:  Prior to recording their first full-length record for Fantasy, CCR was named The Golliwogs.  A golliwog is a "blackface" minstrel caricature that was popular in the late 19th and early 20th centuries and is now widely recognized as racist; the term "wog" is still a slur in the UK for Middle Eastern and South Asian people. The band apparently came by the name innocently, though: a Fantasy executive wanted a name reminiscent of The Beatles and the British Invasion and imposed it on them.

BONUS FACT 2.5:  Zaentz conditioned his agreement to record a full-length record with CCR on them changing their name from The Golliwogs.  According to the story, they chose "Creedence Clearwater Revival" as a combination of (1) a friend of Tom Fogerty named Credence, (2) an Olympia beer advertisement touting the "clear water" used to make it, and (3) the idea that the renamed band (which at that point had played together for 8 years with limited success) would energize the group and bring success.  That's all pretty dumb, but I guess it worked.

BONUS FACT 3:  Eight years after CCR's breakup, in 1980 Fantasy released a live album in the US and Europe titled The Royal Albert Hall Concert.  The record has since been renamed simply The ConcertThat's because it was recorded at the Coliseum in Oakland, California rather than at the Royal Albert Hall in London.  Oops.

BONUS FACT 4:  The jazz artist Dave Brubeck was one of the biggest artists for Fantasy Records, where his deal made him a half-owner.  In that role, he convinced several other jazz acts to sign to the label, too.  But then Brubeck learned that he was in fact only the half-owner of his own records, NOT of the whole label as he had thought. So advised, Brubeck left Fantasy shortly thereafter for Columbia Records, where he had his biggest success.

BONUS FACT 5:  It's silly and pointless, but I enjoy this story from Norm Macdonald to David Letterman about Bob Uecker and John Fogerty.

No comments:

Post a Comment