Chuck Berry and Johnnie Johnson, Blueberry Hill, 1994. Photograph by Michael DeFilippo
Former Rolling Stones keyboardist Ian Stewart (who was kicked out of the band in 1963 for not looking sufficiently young and snotty) once told a certain fellow lover of early rock music, one Keith Richards: “don’t forget that Johnnie Johnson is alive and well and still playing in St. Louis.”
Richards, a worshiper of all things Chuck Berry, located Johnson, alive and alcoholic and driving a bus in St. Louis. The Stones’ guitarist and eventually, acquaintances like Little Richard and Bo Diddley, too, all wound up pouring exhortations into Johnson’s ear. They told him he’d been screwed out of royalties for songs he co-authored with Chuck. (They also convinced him to get back behind the piano, sparking a feelgood career renaissance that included late-in-life gigs with Eric Clapton, Ratdog and Styx.)
So Johnnie sued Chuck.
That word was the crux of it all: co-author. Was it accurate to call Johnson a co-author of the three dozen or so songs he asserted his claim to? Keith Richards said yes. Chuck Berry and his legal team said no way.
The songs themselves represent a meaty chunk of the most beloved and influential rock music ever produced: “Roll Over Beethoven,” “Rock & Roll Music,” “Sweet Little Sixteen,” “Brown Eyed Handsome Man,” “School Day,” “Reelin’ and Rockin’,” “No Particular Place to Go” and many more.
At stake was not just millions of dollars, but in the grandest sense, claims to the creation of rock and roll itself.
The case, filed in 2000, quickly went nowhere. The statute of limitations had passed.
Cut to 2014, when Timothy J. McFarlin gets a bee in his bonnet. McFarlin, an adjunct professor at both Washington and Fontbonne universities and a practicing attorney, decided to revisit the fairness—or lack thereof—in American copyright law by watching the video depositions of Berry and Johnson from 2002.
The depositions, it turned out, were indeed a time machine that conveys the viewer to a fascinating time and place: the minds of two of rock’s unwitting early architects, making powerful, magic music in the St. Louis of the 1950s.
While music lovers might thrill to hear Berry say things like “nobody could play exactly like Johnnie Johnson, no, no… and that’s the reason why we were together so long, producing… music,” McFarlin listened with a different agenda.
The young lawyer wanted to understand how the law can stick its nose into the nebulous space of creative collaboration—which often, it must—to assess who truly deserves the credit when a dispute arises, in the fairest possible way.
McFarlin’s elegant suggestion for improvement, which he’s dubbed the “Berry-Johnson Test,” is explained in a legal paper called “Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship.”
The article is slated to appear in the Vanderbilt Journal of Entertainment and Technology Law next month.
You don’t have to be a lawyer to find the paper fascinating. The footnotes in particular are a trove of anecdotes and quotes about early rock ‘n roll.
Here’s what McFarlin had to say.
At some point, former Rolling Stone Ian Stewart told Keith Richards, “Don‘t forget that Johnnie Johnson is alive and well and still playing in St. Louis.”
That’s the first domino. Keith told Ian he was going to be the bandleader for the film Chuck Berry: Hail! Hail! Rock ‘n’ Roll directed by Taylor Hackford, with a climactic performance at the Fox Theatre for Chuck’s 60th birthday. So Ian Stewart made that statement to Keith Richards, and when Keith came to St. Louis he said, “Is Johnnie still around?” Chuck said, “Yeah, I’ll get in touch with him,” and Johnnie appeared in the film and afterward began to perform much more often, and get much more exposure, whereas before he had been playing smaller local gigs and getting by, by driving an eldercare van. During the filming Keith was talking to Johnnie, and they were discussing how the songs were created. Keith has said that he told Johnnie what he did was “songwriting” and “you should get credit for that if you can.” Johnnie said after that he talked to Little Richard and Bo Diddley and they told him roughly the same thing: he should get credit and money for it.
So there were no residuals or royalties of any kind coming to Johnson?
Not to my knowledge. Johnnie got paid upfront what a musician would get for playing on the song.
Johnson’s suing of Berry did not fly. Where were things left legally in 2002?
There was an opinion issued by the district court that ruled against Johnnie Johnson on grounds that the statute of limitations had expired. Johnson’s lawyers’ theory on why that expiration shouldn’t have been applied to him legally failed. Johnson’s argument—which was novel and difficult—was that the alcoholism he struggled with for a long time and what he claimed was cognitive inabilities should have been considered.
But then why were depositions taken?
Normally when a case is decided on statute-of-limitation grounds, it’s decided quickly, but here because of the claims that Johnnie should be exempt and that Chuck had misrepresented whether Johnnie was entitled to royalties, the court decided the parties should be deposed about the whole case, including Johnson’s claims of joint authorship. If the case had gone to trial, the depositions would have been used during the trial.
How did you get access to these videos and documents?
I ended up talking with the people involved in the lawsuit and telling them I wanted to write a really great legal article that could both advance the law and tell a great story about American cultural and rock history. I was put in touch with Art Holliday, who’s been working for a while now on a documentary about Johnnie Johnson [The film’s release has been delayed for an extended time due to the passing of several of the filmmakers. –B.K.]. He put me in touch with Johnnie’s widow, Frances Johnson. I met with her and talked about the project and she was really helpful and supportive and gave it her blessing. From there, I reached out to the attorneys. Chuck Berry’s attorneys still had the case file, and they said come in and you can copy what you need for the purposes of your article. I studied the file for about a year and combined that with my research on rock ‘n roll and Chuck and Johnnie.
What was it like watching the videos?
It was like watching musical history in a legal setting. One of the strange and really intriguing aspects was seeing Chuck play guitar and Johnnie play piano while begin questioned. I don’t think either of them was entirely comfortable playing their music in front of lawyers and a court reporter.
In the deposition, Chuck often seems defensive. He says nothing Johnnie played ever surprised him, and he calls himself the “director” of the song-creation process.
True, but Chuck also talks in terms of a collaborative process both with Johnnie and the band in general. He didn’t unequivocally say no when asked if Johnnie helped him create the songs. In the deposition, he showed a refreshing honesty in coming to grips with the idea of collaboration in the process. It’s not a clear thing.
Is Johnson the sentimental favorite here, the underdog who you want to get his long-denied due?
It’s complicated. Some people might be influenced by the underdog idea, by the idea that someone maybe didn’t get his fair shake in history. On the other hand there are many Chuck Berry fans who see him as the self-reliant father of rock and roll, a genius who did all these things himself. There’s an attractive, romantic notion of authorship in our celebrity culture. Creative genius is a little less sexy and more messy that that. A lot of great artwork comes out of collaboration between multiple individuals or with a single artist being influenced by the styles of a previous artist. Chuck has always been very open about there being nothing new under the sun. He acknowledges his influences, like Louis Jordan’s guitarist Carl Hogan and T-Bone Walker. People who want to see Chuck as the sole creator see Johnnie as trying to get something that’s not his and tear down a legacy. It’s good to look skeptically at Johnnie’s claims and evaluate them on their merits. Just don’t forget, history is written by the winners… and I don’t think recognizing that Johnnie had something to do with creating these songs in any way diminishes Chuck Berry’s accomplishment. Remember, Chuck wrote all the lyrics, and they’re brilliant—but without the music, as Keith Richards said, they’re just words on a page.
Isn’t music full of these kind of disputes?
Sure. Within the last several years, Jay-Z has been sued by a singer who added a vocal part in the studio with him. She claimed it was significant enough that she should have been given credit as a joint author. That’s why I think we should look at the rules. I think there’s a better way to do it… People can be excluded from the credit and rewards they deserve.
How did the suit affect Johnnie and Chuck’s friendship?
Actually, before and after the lawsuit Johnnie was playing music with Chuck. The lawsuit didn’t appear to damage their friendship. My guess is that Chuck viewed Johnnie as not being the driving force behind the lawsuit. He thought he was being nudged into it. That, and it was just business. Besides being a rock ‘n’ roll legend, Chuck is as much or more a businessman. Johnnie said he didn’t bear any ill will toward Chuck or hold any grudges before or after, either.
Johnnie’s ex-wife heard about the lawsuit and tried to get a piece of the pie, too.
Roseland Johnson, an ex-wife of Johnnie’s who was married to him during the time when some of the songs came about, tried to intervene as a party to the lawsuit. She claimed she should be entitled to at least a portion of the award. She made a motion to become a party and the court denied it and said this is not the place to make that claim, that’s a claim for the court where you got divorced, which was, I believe, in St. Clair County in Belleville. She never filed there because Johnnie lost the suit. One interesting thing in the papers she filed in court referenced her recollection that Johnnie and Chuck worked on some of these songs in the basement of Johnnie’s house, and she was the one who bought the piano. She might have shed further light on the events that took place.
How did you get interested in this?
I have a lifelong love of music, especially rock and roll. I’m 34, but I have an older brother and sisters and I’ve always looked back to earlier music. I like Springsteen, for instance, and I wanted to know who he was influenced by, and that would be Chuck Berry. Then I heard about the case and about Johnnie Johnson. I heard he lost on the statute of limitations, and it piqued my interest. I got involved in teaching, research and writing, above and beyond my private practice, and I thought it could be a really interesting project.
I was dismayed to see that your article contains no discussion of Chuck’s song “My Ding-A-Ling.”
That was one of Chuck’s finest artistic works. [Laughs.] That actually did come up in the deposition. Johnnie wasn’t working with Chuck around that time, I don’t think, but there was some question as to whether portions of that song were inspired by another artist. Johnnie’s lawyers were considering bringing that up to illustrate Chuck’s borrowing.
Have any rock and roll historians weighed in on your work?
People who know about Chuck Berry history have noticed the article. A British guy named Fred Rothwell who’s written a history of Chuck’s recording sessions and a gentleman in Germany who’s a big collector, Dietmar Rudolph, have been hosting discussions about whether Johnnie played on Johnny B. Goode. There’s some disagreement about that.
Johnnie is not the subject of Johnny B. Goode, correct?
Chuck denies it’s about Johnnie, but in Chuck’s autobiography it says it was partly inspired by Johnnie but ultimately became a song about Chuck himself. Johnnie also recalls Chuck once telling him he wrote it for him.
How do you think this all would have gone down if the statute of limitations had not expired and the case was tried using the “Berry-Johnson Test” you promote?
If you believe Johnnie and Chuck’s testimony… there’s a good chance the Berry-Johnson rule would find Johnson to be a joint author of the songs he claims he co-wrote with Chuck. It would have given him at least a chance to have a jury decide.
In that case, what would Johnson have been awarded?
If a jury found in favor of Johnson, he would get 50 percent, but some are arguing a judge could apportion a larger or smaller number based on the level of contribution to each song. But that’s not the law right now. Right now the law is that if you’re a joint author and there’s two people, it’s 50 percent.
Have you gotten feedback on your suggestions from the legal community?
I’ve gotten some good constructive criticism from professors who’ve taught and researched in copyright law. Some have concurred with me and others have pointed out some potential issues, but none of them said it was an unworkable standard. The consensus has been that this is an area where a lot of people are unsatisfied with the present standard. The majority that have commented on it have criticized the present way that joint authorship is determined; it’s just that not everyone is agreeing on ways to improve the standard.
Do you think your ideas have a chance of becoming codified?
I do… I think there’s momentum from dissatisfaction with the present rules and I’m presenting what I believe is the most concrete attempt to fix it. Hopefully some powerful people will look at it and when Congress looks at copyright laws, which they’ve done fairly often in the last few decades, it can be addressed. I contacted my Congresswoman and one of my Senators. I heard back from Senator McCaskill. She invited me to call one of her aides and I did, and we discussed the project. McCaskill has been involved in patent reform recently, and they may look at copyright reform in the future, and hopefully then they will keep my suggestions in mind. A Senator from Missouri using Chuck and Johnnie’s history as a launching point for this discussion could be interesting and attractive.
Tim McFarlin will offer a workshop on “The Case of Johnnie Johnson v. Chuck Berry and What Artists Should Do Before They Collaborate” through the Volunteer Lawyers and Accountants for the Arts, at the Regional Arts Commission, on March 30. You can read McFarlin’s entire analysis of the case here.
