Rock Court: Fantasy v. Fogerty

When the Small Claims version of Rock Court was being kicked around, one very specific rule was initially put into play – no actual, litigated cases. Still, one got through that was too tantalizing to refuse. Popdose Podcast Poobah Dave Lifton suggested the very strange case of Fantasy Records versus John Fogerty, the former accusing the latter of duplicating a Creedence Clearwater Revival tune. The twist is obvious – that would mean John Fogerty, in essence, ripped himself off purportedly out of spite against Fantasy chief Saul Zaentz.

This was too good an opportunity to pass up. It was also too good to mess around with, so we contacted our commentator friend (and real friggin’ lawyer,) Jonny the Friendly Lawyer, posed the question to him and, in a stroke of good fortune for all of us, he agreed to lay out this rather perverse case. Without further ado, we present Jonny the Friendly Lawyer and Fantasy v. Fogerty.

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In 1994 the U.S. Supreme Court issued its decision in Fogerty v. Fantasy, Inc. It was the culmination of years of acrimonious feuding between former Creedence Clearwater Revival leader John Fogerty and his arch-nemesis, Saul Zaentz.  Zaentz was at the time the owner of Fantasy Records, which had released CCR’s catalogue.  (He is also an Oscar-winning film producer, among other things, but that’s another story.)  The decision is a landmark for American copyright law because it held that courts have discretion to award attorney’s fees to “prevailing parties” in copyright suits, and not just copyright owners who sued to recover damages for infringement.  In other words, if a copyright owner sued you for infringement and lost, you could recover your fees and expenses for successfully defending against the action.

The case raised all kinds of Catch-22 issues apart from whether a defendant should recover his or her fees for prevailing against an infringement claim.  For example, at the trial stage, the issue of whether a copyright creator could infringe his own work was considered.  Fogerty had assigned rights in his songs to Fantasy, and so was no longer the owner of the copyrights.  However, he was a beneficial owner because he received continuing royalties in exchange for his earlier assignment.  A copyright’s legal owner cannot infringe his own copyright, nor can co-owners be liable to each other for infringement. Fogerty asked the court to extend this principle to beneficial owners as well.  This request was denied; the trial court decided that a beneficial owner such as Fogerty could bring an infringement action against third parties to protect his economic interests, but could not exercise the legal owner’s rights without authorization.  The lawsuit followed, then, because Fantasy alleged that Fogerty had created an unauthorized derivative work based on his own original song, the rights to which Fantasy now owned.

At the heart of the dispute was the similarity between two Fogerty songs: First was “Run Through the Jungle,” from CCR’s 1970 album Cosmo’s Factory,  and second was “The Old Man Down the Road,” from Fogerty’s 1985 Warner Bros. album Centerfield.  (Both songs were singles, the b-sides were “Up Around the Bend” and “Big Train (from Memphis)”, respectively.)  Fantasy sued Fogerty for copyright infringement, claiming that “The Old Man Down the Road” was simply “Run Through the Jungle” with new words.  A jury found in favor of Fogerty, and he sought attorney’s fees for defending the action.  The case “went all the way to the Supreme Court,” as the saying goes, which decided that an award of fees to parties that successfully defend copyright infringement actions is warranted in order to provide a financial incentive to individuals who otherwise could not afford to defend their rights in court and to deter the bringing of frivolous lawsuits.

The trial jury’s decision in favor of Fogerty determined that the latter song was sufficiently distinct from the earlier song so as to prevent a finding of infringement.  Did they get it right?  You make the call.

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