Dec. 8, 1993: Supreme Court listens to John Fogerty

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John Fogerty

John Fogerty. Photo by Michael Ochs Archives/Getty Images

In late October 1988, John Fogerty—the voice and focus of the meteoric rock band Creedence Clearwater Revival—took the witness stand in a San Francisco courtroom. He also took his guitar.

Fogerty, by then a 43-year-old legend in rock music, was defending himself against an accusation of copyright infringement, a claim generally unremarkable in an industry built on rudimentary chord progressions. What was uncommon was the fact that he was accused of plagiarizing himself.

In 1970, Fogerty wrote and the band recorded “Run Through the Jungle.” Widely perceived as an anti-war anthem, the song became a significant hit, rising as high as No. 4 on the Billboard Hot 100 chart that year. Fourteen years later, when he released “The Old Man Down the Road,” the kerfuffle that followed became a U.S. Supreme Court case that proved to be more about the structure of the music business than the structure of the music itself.

In 1964, the California-born band, known as the Blue Velvets, had been signed to Fantasy Records by the label’s owners, Max and Sol Weiss. Renamed the Golliwogs to trade on the British rock invasion, they met with only modest success until 1967, when Fantasy was sold to a group headed by one of its former salesmen, Saul Zaentz. With a new contract and a new name, Creedence Clearwater Revival, the group focused its music on the unique voice and prolific songwriting of Fogerty, beginning a phenomenal four-year string of hits—among them “Proud Mary,” “Bad Moon Rising,” “Lodi” and “Fortunate Son.”

But in 1968, Fogerty signed a separate three-year deal with Cireco Music, granting the partnership exclusive publishing rights in exchange for royalties derived from their exploitation of his work. When Cireco was subsequently folded into Galaxy Records, a division of Fantasy, the rights to Fogerty’s songs followed.

Despite their mutual success, the relationship between Fogerty and Fantasy eroded. Fogerty blamed Zaentz for his part in a failed tax shelter. Fights over royalties and the monetization of Fogerty’s songbook morphed into near-constant litigation. Their bitterness carried over to the band, which had been together since high school. And by 1972, Creedence Clearwater Revival—one of the most successful bands of its era—ceased to exist.

Hit song, hit with a lawsuit

Fogerty extricated himself from his Fantasy contract, but after a decade of litigation and lackluster solo work, Fogerty signed with Warner Bros. Records. His first album, Centerfield, included “The Old Man Down the Road” as well as two songs—“Zanz Kant Danz” and “Mr. Greed”—that reflected the rancor of his Fantasy years. Zaentz sued for defamation over the two songs, a suit that was later settled. But Fantasy also sued, claiming that “Old Man” was little more than new lyrics over music that infringed upon their copyrights to “Run Through the Jungle.”

In his day-and-a-half testimony at trial, Fogerty illustrated his composition process to the jury by playing his guitar. The jury responded with a verdict in Fogerty’s favor and a few requests for autographs, prompting Fantasy’s attorney to note: “We got upstaged by a superstar.”

But the case wasn’t over. Although he had prevailed on the infringement charge, Fogerty was stuck with $1.35 million in legal fees. Returning to court, Fogerty argued Fantasy should be required to pay the fees under Section 505 of the Copyright Act. The trial court disagreed. In California, a state known for protecting intellectual property, courts routinely favored copyright holders unless a dispute was found to be frivolous or brought in bad faith. When Fogerty appealed, the San Francisco-based 9th U.S. Circuit Court of Appeals sided with the lower court, noting that the one-sided rule was designed as an incentive for copyright holders to pursue valid claims of infringement.

On Dec. 8, 1993, Fogerty v. Fantasy Inc. was argued before the Supreme Court. Later, in a unanimous decision written by Chief Justice William Rehnquist, the court rejected the 9th Circuit ruling, stating that “Section 505’s language gives no hint that successful plaintiffs are to be treated differently than successful defendants.” n

This story was originally published in the December 2023-January 2024 issue of the ABA Journal under the headline: “Supreme Court Listens to John Fogerty.”

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