Vanderbilt Journal of Entertainment & Technology Law Volume 17 Issue 3 Issue 3 - Spring 2015 Article 2 2015 Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship Timothy J. McFarlin Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Intellectual Property Law Commons Recommended Citation Timothy J. McFarlin, Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship, 17 Vanderbilt Journal of Entertainment and Technology Law 575 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol17/iss3/2 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship Timothy J. McFarlin* ABSTRACT "Father(s?) of Rock & Roll" utilizes a unique and historic resource-the previously unseen deposition testimony of Chuck Berry and his piano man Johnnie Johnson-to analyze the problems with how copyright law currently determines joint authorship and to propose a new "Berry-Johnson"joint authorship test. In 2000, Johnson sued Berry, claiming he co-wrote the music to nearly all the significant songs in the Berry canon. Granted access to the case file, I quote and analyze key portions of their deposition testimony, using it as a case study of high-level collaborative creativity and exploring what it can teach us about how best to determine joint authorship under US copyright law. Johnson v. Berry exposes the faults in the prevailing judicial joint authorship tests, which misplace their focus on whether collaborators: (1) considered themselves authors, (2) contributed independently copyrightable expression, (3) controlled the creative * Fellow, Legal Method & Communication Program, Elon University School of Law (beginning Fall 2015); Instructor/Adjunct Professor, Washington University in St. Louis and Fontbonne University; J.D., Saint Louis University School of Law (2006); B.A., University of Missouri (2003). Thank you to Professors Rebecca Tushnet, Mark McKenna, Jennifer Rothman, and Yvette Liebesman for reviewing earlier drafts, as well as Frances Johnson, Joe Jacobson, Martin Green, Mitch Margo, Art Holliday, John Gore, Travis Fitzpatrick, and the staff of Green Jacobson PC for graciously giving knowledge, time, and access to materials essential to this project. A special thanks, too, to Chuck Berry and Johnnie Johnson for the gift of the music they recorded, which we all share, and from which the law can now also benefit. In many ways this Article is my small tribute to that music and to its offspring, rock and roll, a lifelong love of mine, but it could never have come to fruition without the loves of my life, Amy and Fiona, my wonderful wife and daughter. You truly embody the spirit to which rock and roll, and all great art, aspires. 575 576 VAND. J. ENT. & TECH. L. [Vol. 17:3:575 work, and (4) contributed expression that has audience appeal. "Father(s?) of Rock & Roll" proposes a new approach, the Berry- Johnson test, centered on the creation of the work itself. This test, at its core, asks: did more than one person intend to create a single work and did they each substantially contribute to its essence? If so, these persons are its joint authors. To guide this determination, the test uses: (1) the relative impact of each contribution on the work, (2) the views each contributor had regarding the substantiality of the others' contributions, and (3) industry custom. The Berry-Johnson test thereby better recognizes worthy joint authors while setting a bar high enough that courts will not explode with joint authorship litigation. Courts should adopt the Berry-Johnson test to resolve joint authorship disputes. Better yet, Congress should expressly codify it in the Copyright Act, along with a provision creating a compulsory license for authors' use of their non-author collaborators' independently copyrightable contributions, closing a worrisome loophole in the law highlighted by the recent Garcia v. Google case. In this way, the testimony of Chuck Berry and Johnnie Johnson should change copyright law and improve how we determine joint authorshipin future collaborations. TABLE OF CONTENTS I. INTRODUCTION ....................................... 577 II. SONGWRITING, THE CREATION OF COPYRIGHTABLE EXPRESSION, AND JOINT AUTHORSHIP ................... 584 A. What Do We Consider Songwriting? . ... .. 584 B. What Does Copyright Law Consider Songwriting?........ 587 C. How Does Copyright Law Determine Joint Authorship? ............................... ..... 589 III. CHUCK BERRY AND JOHNNIE JOHNSON TESTIFY: DID THEY CREATE THE SONGS TOGETHER? .............. ... 592 A. Smoking Guns? Berry's Lost Demo Tapes and Other Evidence. .................................. ..... 593 B. Johnson Testifies ("I did all my singing with my hands.'). .................................. ..... 595 1. The Statute of Limitations .................. 596 2. The Go-Light: Creation at Home and on the Road..................................... 599 3. Writing and Recording: Johnson's Role and How He Understood It.................... 604 4. Johnson's Contributions: "Nadine" ............ 611 5. "Johnnie's Boogie" ......................... 613 2015] FATHER(S?) OF ROCK& ROLL 577 C. Berry Testifies ("All of this is in our souls now.') .......... 615 1. Creation at the Cosmopolitan Club: "Wee Wee Hours"................................... 616 2. A Song is Not a Song Until It's the Song ............ 621 3. We, I, and My: Tension and Harmony .... ..... 624 4. Berry: Band Leader, Director ................ 627 5. Melody, Origination, and Nothing New Under the Sun ................................... 628 6. A Round-About Sense: Did Johnson Help Create the Songs? .... .... ..... ..... .... 630 IV. WHAT LESSONS DOES JOHNSON V. BERRY HAVE FOR COPYRIGHT LAW 9 ........ ......... ..... .... .... 631 A. Initial Issue: Were Johnson's Contributions "Works for Hire"? ... .. .. .... ............. .... ... .... ... 632 B. Joint Authorship and Johnnie Johnson: New Light on Persistent Problems .............................. 634 1. Self-Regard as an Author is a Poor Indicator of Joint Authorship ............................. 635 2. Independent Copyrightability is a False Bar to Joint Authorship ..................... ..... 640 3. Dominance Does Not Equal Sole Authorship...... 647 4. Audience Appeal Rewrites Collaborative Creation ............................ ..... 651 V. A SOLUTION: THE "BERRY-JOHNSON" TEST....... ...... 653 A. Two Requirements: Intent to Merge and Substantial Contribution to the Essence of the Work..... ....... 654 B. A Three-Factor Guide to Determining Substantial Contribution:Relative Impact, Other Contributors' Views, and Industry Custom ...................... 658 C. How to Deal with Contributors Who Are Not Joint Authors ........................................ 663 VI. CONCLUSION ...................................... 670 I. INTRODUCTION If you tried to give rock & roll another name, you might call it "Chuck Berry." - John Lennon Vocalist, guitarist, and co-songwriter for the Beatles' 1. HAIL! HAIL! ROCK 'N' ROLL (Image Entertainment 2006) (1987) (playing a 1972 clip from the Mike Douglas Show). Lennon's full quote continues: "In the 1950s, a whole generation 578 VAND. J. ENT. & TECH. L. [Vol. 17:3:575 Don't forget that Johnnie Johnson is alive and well and still playing in St. Louis. - lan Stewart Boogie piano player, road manager, and founding member of the Rolling StoneS 2 On New Year's Eve 1952, a band strikes up a song at the Cosmopolitan Club, a small East St. Louis, Illinois, bar and music hall. At first the club's patrons, vigorously celebrating 1953's impending arrival, pay no particular mind. Soon, however, they notice that this band has a rowdy new sound, and they go wild for it. The music combines rhythm and blues with an unusual country flair added by the unknown but boisterous guitar player. The band is the Sir John's Trio, led by Johnnie Johnson on piano and backed by drummer Ebbie Hardy with saxophonist Alvin Bennett. Only, on this important occasion, Bennett couldn't make the show. Fortunately, Johnson knew a local singer/guitarist whom he hired to fill in that night, a man named Chuck Berry. 3 Beginning with that final night of 1952, this lineup of Berry, Johnson, and Hardy, later renamed the Chuck Berry Combo, continued to play the Cosmo Club for the next three years.4 In the worshipped his music, and when you see him today, past and present all come together, and the message is 'Hail! Hail! Rock and Roll!' Right on!" Id. 2. KEITH RICHARDS, LIFE 464 (2010). The first thing Keith Richards remembers about the formation of the Rolling Stones was he and Stewart bonding over Richards playing Chuck Berry on guitar and Stewart asking him if he knew about Johnnie Johnson, Berry's piano player. See id. at 91-92. The Stones' manager kicked Stewart out of the group early on because he did not look the part, though Stewart agreed to continue on as the Stones' road manager and played piano on records, sometimes on stage. See STANLEY BOOTH, THE TRUE ADVENTURES OF THE ROLLING STONES