97 Pages Posted: 26 Nov 2014 Last revised: 12 Aug 2015
Date Written: November 26, 2014
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. We accept as fact that Berry, the self-reliant founding father of rock & roll, wrote his music by himself. However, in 2000, Johnson, who originally hired Berry and who played piano on nearly all the significant songs in the Berry canon, classics such as “Roll Over Beethoven,” “Rock and Roll Music,” “School Day,” “Sweet Little Sixteen,” and “Back in the U.S.A.,” sued Berry, claiming he co-wrote the music to these songs. Both Berry and Johnson testified extensively in the suit about the songs’ creation. Their testimony has been unavailable for study, until now. Granted access to the case file, I quote and analyze key portions of Berry’s and Johnson’s 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 U.S. 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 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 authorship in future collaborations.
Keywords: copyright law, entertainment law, intellectual property, law and culture, arts, authorship, joint authorship, creativity, music, rock & roll, Chuck Berry, Johnnie Johnson
Suggested Citation: Suggested Citation
McFarlin, Timothy John, Father(s?) of Rock & Roll: Why the Johnnie Johnson v. Chuck Berry Songwriting Suit Should Change the Way Copyright Law Determines Joint Authorship (November 26, 2014). 17 Vand. J. of Ent. & Tech. L. 575; Elon University Law Legal Studies Research Paper No. 2014-07. Available at SSRN: https://ssrn.com/abstract=2530741