John Fogerty vs. John Fogerty

Did you know that it is possible to be sued by yourself? The case of John Fogerty vs. John Fogerty is a classic (and unique) example.

In short, John Fogerty was sued for ripping off John Fogerty. You read that correctly. In 1993, he found himself in front of the United States Supreme Court, accused of stealing his own sound.

There is a back story, of course. Most of the texts detailing this event have unhealthy amounts of legal speak in them. There are many technicalities to observe, and hopefully I managed to narrow it down in more straightforward language here.

We all know John Fogerty as the lead singer, lead guitarist and song writer of one of the most popular rock groups ever: Creedence Clearwater Revival. They were active as recording artists from 1968 to 1972, but the band was active well before that, originally signing to Fantasy Records as the Blue Velvets in 1964.

When Fantasy Records was bought by Saul Zaentz in 1967 a new record deal was signed. It led to the development of their first LP the following year, a name change (to CCR), and – without the band being aware at the time – signing away all ownership of their recordings as well as the publishing for all of their songs.

Fogerty has often bemoaned the fact that they (and him in particular as the songwriter) were ripped off, and while he has earned a performer’s royalty from the recorded performances, the ownership and majority of the income has always gone to Zaentz.

After CCR, Fogerty embarked on a solo career, taking control of his own work again. In 1985, Fogerty released the classic Centerfield album, which topped the charts in three countries (United States as well as the Norselands, represented by Norway and Sweden) and did very well in dozens more.

One person was not a fan, though: Saul Zaentz, the owner of CCR’s old label Fantasy Records. Zaentz and Fogerty weren’t on the best of terms in the first place, and the album did not improve on their friendship. In fact, it led him to sue Fogerty not just once, but twice due to two separate issues.

The first and immediate issue: the album included two thinly-veiled attacks on Zaentz: Mr. Greed and Zanz Kant Danz. Critics and fans were quick to pick up on these rather pointed attacks, leading to a lot of press and word-of-mouth about it. This, of course, just made it worse. The question is how unexpected it really was that Zaentz would take action. Especially as a claymation music video for Zans Kant Danz depicted Zaentz as a literal pig that takes on all kinds of villainous costumes to rob people. Too much? Make up your own mind.

Fogerty and the label (Warner Bros.) caught on and retracted somewhat. That song was quickly renamed Vanz Kant Danz and records were reprinted. But, it was too late of course. Zaentz initiated a $144 million defamation lawsuit that claimed Fogerty portrayed him as “a thief, robber, adulterer, and murderer.”

Fogerty must have known that he went too far, and the two sides settled out of court for some undisclosed amount. Zaentz likely has every reason to be happy about that outcome, and perhaps it was the taste of blood that made him thirsty for more. This takes us to the second issue.

Zaentz also felt that the song The Old Man Down the Road was a copy of the CCR song Run Through the Jungle from 1970. He claimed the music was very similar with different words. In other words, he claimed that John Fogerty had plagiarised a John Fogerty song to which he didn’t own the copyright.

Zaentz was so convinced he had a solid case that he decided to sue Fogerty for copyright infringement. This lawsuit went straight into the Federal District Court in San Francisco. It was pretty plain to see what was going on here: this was war.

The court case itself started on 31 October 1988 and went on for two weeks. Fogerty showed up every day during the two-week trial, during which it was arranged for him to bring in his guitar to play bits and bobs of Proud Mary, Fortunate Son and the two songs at issue for the judge and jury.

Fogerty was able to explain that his music style was swamp rock, and pointed out how songs in that style will always have a similarity – beyond the fact that songwriters will also have a basic similarity in how they write their own songs.

The demonstrations and performances had the expected impact, and the six-person jury decided in Fogerty’s favour in November 1988. They all agreed that he did not steal his own song, and that the songs might sound similar to the less discerning listener not familiar with his style, but in fact they were wholly separate and distinct compositions.

However, the judge put that particular debate to the side with his ruling. Adding on to the jury’s own findings, he clearly stated “You can’t plagiarise yourself.” The judge made it clear that whether he did or didn’t wasn’t even a question or a discussion, as it is impossible to do so!

Having said that, how similar are the two songs really? Again, make your own mind up.

One of the reasons Fogerty fought so hard was out of a fear that it would set a dangerous precedent for songwriters. “What’s at stake is whether a person can continue to use his own style as he grows and goes on through life,” he told Rolling Stone at the time. “I can feel Lennon, Dylan, Springsteen and Leiber/Stoller standing behind me going, ‘Johnny, don’t blow this.’”

There was however yet another issue: Fogerty had already paid Zaentz millions in the first settlement, and was now looking at another million-plus in attorney and court fees even though he won the case. He estimated that he’d spent about $400,000, more than the song earned in his legal defence.

The Copyright Act of 1976 allows for the prevailing party (the winner) to make the loser pay for their court costs, and naturally Fogerty wanted Zaentz to pay these costs based on this Copyright Act. The problem was that under the Ninth Circuit standards, prevailing plaintiffs generally obtained attorneys’ fees as a matter of course, but prevailing defendants had to show that the underlying suit was frivolous and brought in bad faith, wasting everyone’s time and money, in order to recover fees.

In short, the district court decided that they felt Zaentz case was “in good faith and not frivolous” (despite his previous defamation lawsuit) and thus Fogerty had to shoulder the financial burden. Fogerty felt this was a double standard and pushed the issue by appealing the decision.

When it was brought to the Ninth Circuit court of appeals, they interestingly could not agree. Half thought Fogerty was right while the other half didn’t. The entire situation was escalated to the Supreme Court, who agreed to review the Ninth Circuit decision.

This led to a third round of court proceedings: a supreme court countersuit by Fogerty to get Fantasy Record to cover his legal fees.

In the end, the U.S. Supreme Court ruled in Fogerty’s favour in 1994. Chief Justice William Rehnquist spoke on behalf of all of the Court member’s except for one, and it boiled down to this quote: “The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.”

What the judge did here, was reminding everybody that the Copyright Act doesn’t just exist for the plaintiff or the defendant, but for the people. The sole goal of the copyright law isn’t to prevent infringement upon intellectual property, but to encourage creativity and the broad public availability of these works for the general public good. To punish artists who had successfully defended themselves is to stifle creativity and remove the incentive for it, which only hurts the rest of us.

Of course nobody wants to have someone else steal their own song and get paid for it. This was about someone potentially risking having to pay over $1,000,000 because he developed his own musical style, and was defending his right to keep playing in that style. We can be thankful that people actually saw sense. This ruling set a precedent that no doubt stopped a lot of lawsuits with negative and false intentions.

When it all was over, Fogerty also revealed to reporters that Fantasy hadn’t paid him any royalties since it had filed the suit against him. It was actually holding some $1.5 million in escrow. Rolling Stone reported at that time that Fogerty told the press room, “Hey, let’s all go over to Fantasy right now and get it.”

Fogerty reflected on the case in his 2015 memoir, Fortunate Son: My Life, My Music. He said the hardest part was hearing that Creedence’s bassist, Stu Cook, had been the one to point out the songs’ similarities to Zaentz. “I felt that I had been stabbed in the back,” he wrote. “To intentionally go see Saul — a person who’d cheated and lied and really treated all of us like crap — and do that? I’m the guy who actually provided you with millions of dollars, Stu. So that strange bedfellow is the one you climb into bed with — against me?“

Furthermore, he wrote “it took me years to write a song anywhere near the territory of The Old Man Down the Road, because some part of me worried that I was going to get sued again.”

It wasn’t until 2007 that he attempted “swamp rock” again for his Revival album. It was widely seen as a return to form. People were happy to see him return to the style of music he was originally known for and that people are particularly happy to receive from him. He has continued to embrace that style since.