Tim McFarlin Introduces the Berry-Johnson Test into American Copyright Law

There is no doubt that Chuck Berry has had an enormous impact on much of what popular music became in the 1960’s. An impact on jurisprudence has not been documented so far. This however may change in the future.
I am not talking about the multiple conflicts with U.S. laws Berry ran into during his lifetime. No, Chuck Berry may – at least indirectly – have an impact on future U.S. copyright laws.
Timothy J. McFarlin, a researcher and professor at the Saint Louis-based universities Washington and Fontbonne, was so kind to send me a preprint of a paper discussing necessary changes to the legal aspects of songwriting and recording (as well as creative work in general). The full 95-page text is to appear under the title "Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship" next year in the Vanderbilt Journal of Entertainment & Technology Law. You can read it right now from the Social Science Research Network at http://ssrn.com/abstract=2530741.
Tim McFarlin discusses a special detail in U.S. copyright laws, namely how current law determines what is called "joint authorship". This is a question which arises when two or more people contributed to a common work such as a song. Usually when two composers worked together to create a song, they own a shared copyright and are listed both. Typical examples are Lennon-McCartney or Leiber-Stoller.
Composers who work together usually have some kind of contract or agreement on how to claim copyright of the resulting works. If they don’t or if one of them questions the agreement, a judge or jury needs to decide who wrote the piece and who owns the copyright.
Now what has Chuck Berry to do with this? Berry was the defendant in a well-documented lawsuit which basically revolved around this exact question.
In 2000 Berry’s long-time pianist Johnnie Johnson filed a suit against Chuck Berry claiming that he, Johnson, co-wrote 42 songs published under Chuck Berry’s name in the 1950’s and early 1960’s. This would have entitled him to both be listed as a co-author and to gain half of the financial success these songs created – which Johnson’s lawyers estimated to an amount of at least $6.2 million.
Johnson lost the case in the end. It was never determined whether or not he co-wrote the songs and whether he could qualify as a co-writer. The court ultimately ruled that the statute of limitations had expired, meaning that Johnson was required to have filed his claims no later than three years after he knew or should have known that Berry was claiming sole authorship of the songs.
Because this expiration was unclear first – Johnson’s lawyers claimed that he was tricked into believing that he had no rights to the songs – the parties to the case concurrently investigated how these songs were created and whether Johnson qualified as a co-author at all. To do so, they let Berry and Johnson explain how they worked in the 1950’s and early 1960’s.
On June 19-20, 2002, Johnnie Johnson was interviewed under oath in a deposition by Chuck Berry’s lawyers. Berry’s deposition by Johnson’s lawyers took place two months later on August 21-22, 2002. These resulted in over six hundred pages of transcript which are now for the first time used for scientific research. Tim McFarlin cites a lot from these protocols which therefore makes his paper an interesting read even if you don’t care about the legal aspects.
If I understand Tim’s ideas correctly, he complains that in current U.S. copyright law one of the main arguments whether or not a contributor is a co-author (and an argument which courts test against) is that the contributor (or both) regards himself as an author. And the contribution must have been copyrightable by itself.
Both requirements do not fit to what we see in the collaboration between Berry and Johnson – or any other contributors to recorded music. The copyright laws assume that a sole author (or a team) in advance prepare a copyrightable work. This might happen in song recordings if you look at a big band or orchestra where a composer or arranger clearly writes down the notes each instrument is to contribute at a given time.
This however is not how a 1950’s recording of a Rock ‘n’ Roll band worked. From the testimonials quoted here we understand that Berry basically wrote down the lyrics. Probably he also had in mind or on paper the melody he would sing these words to – and maybe even his guitar accompaniment. But Berry might have in mind but not in writing what for instance the drummer or the bass player should contribute. He just let the musicians do their best – which is what he selected them for.
Thus if a musician came up with let’s say a significant bass line or a great piano solo, this hasn’t been part of Berry’s original composition – and thus his copyrightable work. We know of several Berry recordings where Johnnie Johnson provided more than just a standard blues or boogie accompaniment to the songs. A nice example to me is You Never Can Tell, where the piano almost provides a second voice.
As Tim McFarlin points out, even if Johnson was the author of these contributions and even if those would provide a significant element of the copyrighted work, Johnson would still not qualify as a joint author because his work would not pass the typical tests. Please read Tim’s paper to understand the legal arguments. Basically Johnson never intended to be a co-author and thus he couldn’t become one.
This is a bit different from the understanding of authorship in other countries, such as here in Germany. Here you do not have to intend to be an author. Simply by the act of writing (or composing) you create a work and then you own the copyright in it. This is much simpler than in the U.S., but might result in similar problems for a judge to decide whether a contribution is worth a share in the copyright.
Tim McFarlin comes to a similar result by proposing a new test for joint authorship which does not rely on the intention to become an author but on the intention to jointly create a work. In this example musicians came together to jointly contribute to the creation of a song (at least if Johnson’s testimony is to be believed) or at the very least to jointly contribute to the recording of the song, so all of the substantial contributors to the song (Tim details how he thinks “substantial” should be determined) should qualify as its co-authors, just as all substantial contributors to the recordings should qualify as its co-authors. (Under U.S. law, a song and an audio recording of that song are separately copyrightable, but here Johnson only sued for credit as co-author of the songs, probably because the copyrights in the recordings were unambiguously owned — at least originally — by Chess under recording contracts that Chess had with Berry and the rest of the band.) Because McFarlin’s test stems from evaluation of the Johnson v. Berry case, Tim names it the "Berry-Johnson" test. One might see this as an honor for Chuck Berry – or probably not.

For readers of this blog the most interesting elements of Tim’s paper are his quotes from the sworn testimony of Johnson and Berry. These provide a quite open look at how recording went during the old days at Chess studios. Here are a few quotes cited in Tim’s article. As these are taken from oral questions and answers, punctuation and grammar are quoted as in the protocols.

Johnnie Johnson on work at Berry’s home in Whittier:

[W]hen we first started, he didn’t have a studio, we were mostly running over these songs at his house, and then after awhile [sic] he got this studio on Easton, and that’s where we did most of the work at.

Johnnie Johnson on Leonard Chess’ contributions:

Most all of them was in final form, at least we thought they were in final form, until maybe Leonard Chess would suggest something we did. [H]e would take the tape that we took him, he would listen to it and he would suggest something that he maybe thought could be improved, he would make a statement about it and we would maybe try what he thought would improve it; if it did, that would go on the record; if not, we would leave it as is.

Johnnie Johnson about whether drummers Jasper Thomas or Ebbie Hardy should be considered as among the composers of these songs:

No. Because they’re not playing music, they’re just keeping time.

Chuck Berry trying to explain to a lawyer that a song is not complete until on record:

[T]here was no Wee Wee Hours before, there was no music to Wee Wee Hours before Wee Wee Hours was Wee Wee Hours. Wee Wee Hours became Wee Wee Hours after we had recorded it, it was named Wee Wee Hours. We physically put it on the record. The name, the title Wee Wee Hours became the title of Wee Wee Hours before Wee Wee Hours.

Chuck Berry still trying to explain the same thing:

I could change this to all of these songs were created [in the session], because a song is not, to me, is not a song until it’s confirmed, it’s confirmed in the session when we say, okay, this is this song, if it bears the same title that we brought up. [I]t’s not that song until it’s there. [A]ll the other things were rejected and they became no song until the final song. [I]t isn’t that song until after it’s named that song and then put down on a record and came out that way.

Chuck Berry about the complexity of songs such as Wee Wee Hours:

Well, I think that Wee Wee Hours, it’s so simple, I think I showed him [Johnson] what to play. I could have played it, because it’s simple, it’s very simple, and what I played with my left hand is progression, and any person would follow with that same thing if they heard the top.

Chuck Berry about his own songs:

My songs are, my own songs rather than copying Route 66 or a Nat Cole song, they’re so simple that you can play one song and sing the lyrics to another song.

Chuck Berry about the early Chess recordings:

I’m trying to think if we ever did any rehearsing at the Cosmopolitan, and that’s about the only place that we would have, because most of these songs I created actually in the session, we might have played songs like it, like Roll Over Beethoven is about the same progression as Johnny B. Goode, or Carol. Rock and roll is so simple that you can hardly distinguish any specifics about either song.

Chuck Berry about his understanding with Johnnie Johnson:

[T]here was a harmonious understanding after a few recordings, that when I stop singing, Johnnie played this riff, or that riff, and there are certain ones that I can name. I could implicate the rhythm and he would remember the thing that I liked so much, and the same thing would happen, turned around, when I would play the riff, that I’d ask him to play a certain thing, seemed like to me, he would just fall in.

Chuck Berry on how his songs were created:

Mostly [] all of my songs [] began with what I strum with the guitar, just a strum, chord for chord for chord as the changes go, and along with the lyrics that I’m singing with it, so this is a good progression, I mean, manner in which a song travels in changing chords and so forth. I’m singing the melody along with this, and as I introduced the songs to the musicians at a session or wherever it is, a jam session behind any auditorium, I will play that and sing that, you know, they get an idea of how the song progresses.

Chuck Berry on originality and copyrights:

I believe there is nothing under the sun that hasn’t been played, and now, with the years that I have, there is nothing, there is no riff under the sun that Johnnie has not heard or I have not heard; so, you play, it might come out and it belongs to someone else, you take the chance that it doesn’t, and you go ahead and you record it; [] if it sounds good and meets what you wanted on the song or is equal to what you wanted in the song, let it go, it’s a song, you don’t know whether it will be a hit or not, so it goes, and nobody is writing it down saying ‘I own this’, and ‘I own this’, or ‘This will be good for the song as a copyright’, or anything, nobody knows that until after the song is played out there in the world.

Chuck Berry on what makes a song:

You know, since I consider the lyrics, some of the lyrics in my songs is the whole song, especially like Johnny B. Goode, most of my songs are just boogie, but lyrics, I guess, carried them through, No Money Down, Roll Over Beethoven, I know Beethoven had, but I think the lyrics of my songs kind of pushed them more so than the music, because I’m playing just boogie-woogie, like Count Basie, Lionel Hampton, Tommy Dorsey, those are the people that drove me to playing, you know.

Chuck Berry on to what extent Leonard Chess decided what went on record:

His glory and my privilege, because I wanted to record. I had the inspiration that, I guess, any youngster would have, as long as you record me, I’ll do what you say, I’ll record anything, you know.

Chuck Berry on developing Roll Over Beethoven:

Roll Over Beethoven is a twelve-bar blues boogie, twelve-bar boogie blues, the music was not developed, it was just played boogie in C, and believe me, there is nothing different from playing boogie in C and hearing the lyrics to – what was the song you said? Roll Over Beethoven, Johnny B. Goode, you name it, all of the songs could carry the same background or music that each other has. So, how did the music develop? Johnnie played boogie in C, I sing the song, once my singing is a comparable and the music is in tone quality and volume, that song is made. [How about the guitar?] Well, the drum, too, for that matter, all of that has to coordinate, you know, with, what do you call it, favorable to the record owner, to the Chess Company, to Chess himself, if it’s favorable, if it sounds good, once we get it to sound good on one take, that’s a song, that’s what I mean.

The basic question of whether Johnnie Johnson should have been granted a partial copyright on some Chuck Berry songs remains open. The court did not decide. Johnson supporters such as George Turek and his stepson Travis Fitzpatrick will probably have no doubt. They also had Johnson trademark the line "Father of Rock & Roll" which, as Berry is also often called the Father of Rock & Roll, led Tim McFarlin to the title of his paper: "Father(s?) of Rock & Roll".
My personal opinion is that Johnson for the most part of Berry’s songbook did provide a great underlying piano foundation, though not necessarily more than any other good pianist could have provided as well. Therefore for all of the great hits I agree with Chuck Berry in that the lyrics and the melody make the song. This is what would end up in sheet music, and this is what should be regarded as copyrightable. The Johnson v. Berry case did not give us a definite answer whether Berry wrote the melodies of his major hits all alone, or along with Johnson, or with someone else.
Setting the big hits aside, there are several Chuck Berry recordings for which Berry has been listed and registered as the sole composer – often many years later – in which Johnson plays a major, if not the major role. Have a listen to the recently discovered Fast B6. This is a pure piano piece and nobody should say that this is a Chuck Berry composition. Or, to take one song which was recorded in the 1950’s but interestingly not disputed in the trial, listen to Blue Feeling. This is a song which should have been credited at least to Berry-Johnson, if not Johnson alone. However, since Johnson died in 2005, all that is left on the subject is current and future scientific research.

One more sidenote: From Tim McFarlin’s paper we also learn the correct spelling of Ebbie Hardy’s name. Drummer of the original Johnson/Berry band, Hardy’s first name has been spelled Eddy and Ebby in former publications. Tim got the correct spelling from Ebbie’s grandson.