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Rock icon Chuck Berry is no stranger to the law. Yet even he may have been surprised by his latest legal headache — a suit in which Johnnie Johnson, his longtime former pianist, claims to have co-authored most of his hits. Johnson had launched Berry’s career in 1953 by hiring Berry to front his band, but over time their roles and fortunes swapped. Berry honored his mentor in “Johnny B. Goode” and rose to the pantheon of rock stardom while Johnson, whose rapid-fire piano runs propelled many of Berry’s great records, wound up driving a bus. Last November, he sued Berry for his share of credit and royalties. Although the claim seems awfully late, it’s bolstered by Rolling Stone Keith Richards and others, who have noted for years that many of Berry’s songs were written in keys such as B-flat that are far more comfortable on a keyboard than on a guitar. And it’s plain to hear that while some songs in the Berry canon derive their power from slashing guitar figures (“Roll Over, Beethoven,” “School Days,” “Carol”), others clearly have more of a keyboard feel and sound (“Beautiful Delilah,” “Nadine,” “Blue Feeling”). Notably, among the 50 songs Johnson claims to have written is “Sweet Little Sixteen.” And therein lies a tale. “Sweet Little Sixteen” itself was blatantly copied as “Surfin’ USA,” the Beach Boys’ first top 10 hit. Indeed, when “Surfin’ USA” appeared on the “Best of the Beach Boys” LP, Berry was credited as the composer, and in liner notes to the current CD reissue of their first album, the Beach Boys’ Brian Wilson rhapsodizes over how the Berry original inspired him to craft his own version. But this is revisionist history. When the “Surfin’ USA” single scaled the charts in 1963, the sole author had been identified quite differently — none other than Brian Wilson. What had happened since then? A twinge of conscience? A heartfelt gesture to share the vast riches of rock with an influential but neglected forebear? Hardly. Berry’s publisher had sued, and Berry emerged from settlement with the writing credit. OK, rock ‘n’ roll was an evil and greedy business. We all know that. But how about the wholesome purity of folk music? Mark Twain once quipped that a folk song is a song nobody ever wrote. Many folk artists, though, have tried their best to remedy that. Thus Peter Paul & Mary claimed authorship of “This Train” on their first album and “Go Tell It on the Mountain” on their second, even though both songs had been recorded while they were still in diapers by Sister Rosetta Tharpe (who was hardly above such things herself, having taken credit on her own record of “Down By the Riverside” for having written that venerable spiritual). Or consider “Wimoweh,” popularized in 1952 by the Weavers (who awarded its authorship to a pseudonym for their group) and later in 1961 as “The Lion Sleeps Tonight” by the Tokens (who, in turn, claimed the writing credit for their two producers), even though it had been cloned from a Zulu song recorded in South Africa in 1939. And so it goes. So, what’s the point? Are all pop artists conniving thieves? Of course not. Often, it’s merely a question of common economic sense — if a song is so old or its history so tangled that its origins can’t reliably be established, royalties are there for the taking and someone might as well pocket them. While a modern artist or producer may not be especially deserving, who’s to harm? That’s different, of course, from that other time-honored but honorless tradition of forcing naive and powerless artists to yield writing credits as the price of airplay and exposure. Thus, DJ Allan Freed became co-author of the Moonglows’ “Sincerely,” and record exec George Goldner “wrote” many of Frankie Lymon and the Teenagers’ hits. It’s easy to sneer at these blatant examples, but the issue of authorship can be far more complex. In an especially troubling case, George Harrison had to pay nearly $600,000 in damages for having plagiarized the Chiffons’ 1963 “He’s So Fine” in his 1971 “My Sweet Lord.” At trial, Harrison conceded that he knew the Chiffons’ tune (it was a hit both in England and the United States), but he steadfastly denied any intentional copying, swearing instead that his song arose from riffing with Billy Preston in a hotel room. The court accepted his explanation, but nonetheless found him guilty of “subconscious” imitation. The court’s equating the two songs was absurd. Beyond the first three notes and superficially similar second phrases, the records reveal significantly different structures, melodic development, choruses, tempos, instrumentations, and background vocals. The judge (himself a composer) even conceded that a telltale grace note that he cited as the definitive link between the two songs arose only in a demo and is nowhere to be found in Harrison’s printed music nor heard in his record. All told, it’s awfully hard to mistake the Chiffons’ ditsy teen-angst doo-wop (“doo lang doo lang doo lang”) for Harrison’s ardent religious meditation. Yet the judge concluded that 75 percent of the success of “My Sweet Lord” was due to having copied the melody of “He’s So Fine.” Harrison fought the case through several appeals, but a more refreshing approach had been taken a century earlier by Johannes Brahms, whose first symphony was dubbed by a critic as Beethoven’s Tenth. In a way, the title was flattering, presenting Brahms as the artistic heir to the greatest symphonist of all. Yet, it was also derisive, as detractors pointed out the striking similarity of the chorale theme of the last movement of the Brahms to the famous “Ode to Joy” of the finale of Beethoven’s Ninth. Reportedly, when chided about this, Brahms would snarl something to the effect of, “So what? Any fool can hear that!” (Lucky for him that Beethoven’s attorneys weren’t around to sue.) Brahms’ attitude wasn’t just an eruption of artistic temper, but signals an essential sense of history. It’s been said that there are only a half-dozen elemental themes in literature and that all the great books, poems, and plays ever written are mere variations. So, too, with Western music, which is based upon a handful of common assumptions. Melodies and chords coalesce around certain intervals, harmonies evolve, rhythms develop, and structures progress in certain ways because we find them pleasing or expressive. It’s not just a question of custom and training — relations among tones correspond to the laws of physics (i.e., a standard chord is an overtone series), our rhythmic preferences are driven by physiology (i.e., a stirring march is an elevated heartbeat), and favorite forms mirror the vicissitudes of our emotions. It also has been said that all you need for rock ‘n’ roll (and much other pop) is a guitar and three chords. If that’s true, then, at least according to the thinking of the Chiffons court, whoever first thought of those three chords is owed billions in royalties. As for “He’s So Fine” and “My Sweet Lord,” a descending motif followed by a rising one is so commonplace that it seems inconceivable (outside the courtroom, at least) that anyone could claim it to be genuinely original. Indeed, the precise motif at issue here (G-E-D) had been used as a main theme over a century ago both by Brahms in his Clarinet Quintet, Op. 115, and by Ernest Chausson in his Symphony in B-flat. Musical copyrights are fundamentally unfair. Novelty is at best a matter of degree. A typical melodic phrase or harmonic progression owes far more to its predecessors than many artists (and their copyright lawyers) care to admit. Because of the strength of convention, few who sit down to write something “new” can escape the powerful influences of the past, which invariably guide our thinking and control our output. Many of the early copyrights were simply a matter of having been in the right place at the right time. And in this case the right place was a studio, and the right time was the dawn of radio and the recording industry. Musicologists have traced many of the earliest recorded (and hence copyrighted) folk and blues songs to much earlier, and often oral, sources. Most such songs were largely derived from the musical traditions in which the artist had been raised. When an artist we revere as one of the “roots” of our culture made a record, he may have claimed the copyright even though his song wasn’t all that original. Without evidence of a previous version, challenges were rare. Copyright has changed our entire way of thinking regarding the nature of musical invention and has reshaped our cultural history. Thus, of the first country stars to record, Gid Tanner and Riley Puckett made no pretense of having written the material they waxed, while A.P. Carter claimed authorship of nearly all the Carter Family records, even though he was more a compiler and stylist than a composer as such, having collected and arranged verses and tunes that were prevalent among Virginia mountain folk. Yet Tanner and Puckett were soon forgotten as mere performers, while Carter, abetted by his huge catalog of copyrights, will forever be remembered as a prolific writer of seminal music. The difference was more a matter of opportunism than a fair measure of genuine invention. And what about Chuck Berry? He’s widely acclaimed as one of rock’s true originals and one of its most prolific and formidable composers, but who really wrote his songs? Did Chuck be bad to Johnnie B. Goode? We’ll let the court figure that one out. But perhaps both Berry and Johnson are so heavily indebted to their legions of forebears that their songs properly belong to that most original author of all: Anonymous. So roll over, Chuck Berry, and tell the Beach Boys the news! Peter Gutmann is a partner at the Washington, D.C. communications firm Pepper and Corazzini; other music articles by the author are posted on his Web site at www.classicalnotes.net.

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