Fogerty v. Fantasy, Inc.

Perhaps it’s just my own self interest talking, but one of the first and most important actions any young musician or artist can make is to take the time to find a good lawyer.  It’s sort of like finding a general practitioner – you find a doctor you like and trust, and you go to them when you need something checked out.  I could lecture musicians and artists all day about the need for trustworthy legal counsel, but I actually find cautionary tales to be much more effective.  You might think that the issues that arise in the following tale of John Fogerty and Fantasy Records to be unlikely to affect you until you are at Fogerty’s level of renown, but for every John Fogerty who is financially able to fund lawsuit after lawsuit there are countless other musicians who had to pack it in because they didn’t take the time to protect their interests before the cease and desist letters hit.

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We’ve all heard the song.  John Fogerty wants the coach to put him in centerfield.  He’s ready to play.  When you ask?  Oh, that’s right.  Today.  Well, okay, maybe I’m presuming we;ve all been to a baseball game at some point since 1985.  But perhaps that’s a faulty assumption, despite the crossover love fest between indie rock and baseball since the ’90s.  In 1985, John Fogerty, former leader of the East Bay swamp rockers Creedence Clearwater Revival, came out of nowhere to score a huge summer hit with his album Centerfield and its monster baseball jam of the same name.  I say that he came out of nowhere because Fogerty did little recording between the end of Creedence in 1972 and 1985.  To understand his prolonged absence, and to learn the most interesting story stemming from Centerfield*, we have to return to Fogerty’s Creedence days.

* Let me make one thing clear: Centerfield is not what I myself would consider a great record or, for that matter, song.  But this story has nothing to do with the quality of the album or ubiquity of the song.  So don’t worry, I’m not going to urge on you some critical reevaluation of this record.  And though I don’t think Creedence really needs any sort of critical reevaluation, I will say that I only really started to love them when I read a review of the Minutemen that contended they were essentially a sped up version of Creedence.

Fogerty, his classmates Stu Cook and Doug Clifford, and his older brother Tom began playing together in and around the San Francisco Bay Area in the early ’60s.  Band gets going when the boys are a few years out of high school, they develop a local following, and they sign to Fantasy Records, a fledgling SF label known primarily for Vince Guaraldi jazz records.  Initial owners like the boys but get out of the industry after they make some money on Creedence’s early success as the faux-British Invasion band The Golliwogs.  Enter Saul Zaentz, a Fantasy employee who buys out the former owners.  Creedence suddenly hits it big with songs like “Proud Mary,” “Green River,” “Bad Moon Rising,” “Down on the Corner” and (my personal favorite) “Lodi.”  All (legal) hell breaks loose.

When Zaentz took over Fantasy, he presented a new recording contract to the Creedence boys.  Despite the fact that Cook’s father was a prominent San Francisco attorney, the boys decide not to have him or any other attorney review the contract before signing it.  I don’t know how many times to say this:  get an attorney to review your contracts, even if you are signing a contract with your buddy.  Seriously.

Essentially, every year Creedence had to give Fantasy a certain number of “masters,” or completed songs ready to be released.  If Creedence failed to do so, the number of outstanding masters for the year was added to the following year’s requirement.  This was common in the music industry at the time, and given the near impossibility of actually completing all of the contract’s requirements, it essentially turned young artists into the indentured servants of their label.  Importantly, Creedence also assigned the publishing rights to each of their songs to Fantasy.  This was somewhat typical at the time and is very important to our story.

Creedence, now thoroughly, overwhelmingly signed to Fantasy, got to work fulfilling their recording contract.  Which they did for a while, in no less than chartbusting form:  all told, Creedence sold some 20 million albums and 10 million singles worldwide, earning around $75 million in the process.  John, Tom, Stu and Doug – and Fantasy – were suddenly rich.  Rolling in money, Zaentz suggested to the boys that they keep their money in a Bahamian tax shelter, the Castle Bank and Trust.  Our boys jump at the chance.  Oh, and in order to do so, they agree to a lower royalty rate from Fantasy.  But they will be saving so much in taxes that this of course makes sense. … Again, people, legal counsel.

For a few years, things went swimmingly between the Creedence boys.  It seemed John was an eternal fountain of hit songs, and the band played to packed crowds around the world.  But, as per usual, tensions began to flare, particularly the sibling rivalry between brothers John and Tom.  As is so often the case, an extremely successful band broke up at the height of their success amid bad blood and pointed accusations.  Creedence was done by 1972, just five or so years after their breakthrough.

Now, an important piece of this story is that Fantasy’s contract with Creedence stated that should the band break up, each member must execute an individual recording contract with Fantasy in order to provide any remaining masters owed to Fantasy under the contract Creedence signed in 1967 – a very common practice, even today.  And there were many, many masters remaining on that contract.  In a demonstration of magnanimity, Zaentz released Doug, Stu and Tom from their personal contracts at the end of 1974.  However, Zaentz was no fool: unlike his brethren, cash cow John was stuck with Zaentz.

Fresh out of Creedence, Fogerty started writing what would be his first true solo record.  This is where Fogerty’s relationship with Zaentz goes south, for two primary reasons.  First, Fogerty could not keep up with the absurd masters requirement in his personal contract with Fantasy.  No one could.  However, Fogerty was fully aware of his value to Fantasy and figured he could renegotiate the contract to something more reasonable.  Nope.  Again, Zaentz was no fool.

Moreover, while Fogerty was finally rid of Creedence, it also meant he didn’t have Creedence touring revenue lining his pockets, and he developed liquidity issues.  So when he looked into withdrawing money from the Castle Bank and Trust, it turned out that the tax shelter was a scam.  By the mid ’70′s, the Castle Bank and Trust simply no longer existed, taking with it millions from each member of the band.  Fogerty thought Zaentz was in on the scheme, and thus begins Fogerty’s litigious streak.  In 1975, Fogerty and the rest of the band sued the Castle Bank and Trust and Fantasy to recover the lost money.*

* This suit dragged on until 1983, when a jury awarded the band over $8 million from the bank, though nothing from Fantasy.  As a result, the band never saw a dime.

Now thoroughly disgusted with Zaentz, Fogerty put feelers out in the industry for anyone who could get him out of his contract with Fantasy.  It was David Geffen, then with Elektra, that opened up the checkbook.  Geffen gave Fogerty a four record deal and that should have been the end of the matter, right?  Nope.  Fantasy would only sell Geffen Fogerty’s contract for the US and Canada and thus still owned Fogerty for the rest of the world.  The idea of handing over his first real solo record to Fantasy, a company which he felt threw away millions of his money in the Bahamas deal, in any capacity proved too much for Fogerty.  So Fogerty suggested a deal to Fantasy:  any future Creedence royalties Fogerty would earn in exchange for Fantasy releasing him from his contract worldwide.  Have I mentioned that Zaentz was no fool?  Comparing the somewhat lukewarm reception to Fogerty’s solo career to the ongoing moneymaker that was the Creedence catalog, Fantasy jumped at the deal.

While Fogerty was now “free” from Fantasy, he didn’t do a whole lot career-wise from about 1975 until 1985.  Fogerty even refused to perform his own Creedence songs between 1972 and 1987 because he would have to pay a royalty to Fantasy every time he performed one.*  This despite the fact that he would have stood to make millions playing an all-Creedence set.

* I actually find that this point is the source of some confusion born of the ashes of time.  When I mentioned that I was writing a piece about Fogerty’s legal woes, several friends said ‘Oh yeah, he couldn’t play his own music for years, right?’  Actually, this is not exactly true – he could have played Creedence songs in concert.  But since Fantasy owned the publishing copyrights to the Creedence catalog, and thus the right to perform the songs publicly, Fogerty would have to pay a royalty to Fantasy every time he played one of his own Creedence songs.  So Fogerty could have played Creedence songs, and he likely would have cashed in doing so, but the guy stuck to his guns and refused.  The only reason he started playing Creedence songs again in 1987 was because he was worried the world would think Tina Turner wrote “Proud Mary.”  No, really.

Skip forward to 1985.  Dormant for years, Fogerty comes charging out of retirement with his hit record with its peppy title song variously conjuring images of mom, apple pie, summer, and, of course, baseball.  America eats it up - Centerfield reaches number one on the Billboard chart.  Unfortunately, a new hit record means not only a new chance to drag Zaentz’s name through the mud, but it also presents a new reasons for Zaentz to try to screw Fogerty.  By the mid ’80′s, these two dudes must have just completely hated each other.  I mean, when his brother Tom died from complications with AIDS in 1990, Fogerty hadn’t spoken to him in years because he thought Tom took Zaentz’s side by continuing to record for Fantasy.  That’s some old school vitriol right there – refusing to talk to your brother for years until right before he dies because you hate someone else so much.

So, class, as we know Fogerty and Zaentz do not care for each other.  So what does Fogerty do with his first hit record in 12 years?  He writes not one but two songs about Zaentz – “Mr. Greed” and the subtly titled “Zanz Kant Danz.”  Neither are particularly interesting tracks and both stick out like sore thumbs from the remainder of the otherwise upbeat record.  Not much point in giving them a listen now, but of course you know who was listening at the time – Zaentz.  So what does he do?  He sues Fogerty and his label Warner Bros. for defamation over the tracks.  Despite the fact that this claim seems like a loser to me as the lyrics constitute Fogerty’s opinions rather than any actual false allegation*, Fogerty settled, re-edited the songs, and changed the name of “Zanz Kant Danz” to “Vanz Kant Danz.”  Fogerty even publicly apologized.  Phew.  Problem solved.  Right?  Of course not!  Amazingly enough, this has all been merely prelude to the good stuff.

* Another common source of confusion:  a defamation claim does not lie every time someone says something bad about you.  You can shout your negative opinions about others from the highest mountain all day long, so long you don’t spread untruths about them.  Think of the difference between the statement ‘I think Zaentz is a jerk’ and ‘Zaentz is a murderer’ (when the latter is untrue).

Not content sticking it to Fogerty for “Mr. Greed” and “Zanz Kant Danz,” Zaentz devised what has to have been one of the most jaw-droppingly sinister litigious plots ever.  Zaentz sued Fogerty for plagiarizing - himself.

And at that moment, copyright attorneys around the country began to bleed out of their ears.

Here’s how this works from a legal standpoint.  Fogerty wrote the bulk of the Creedence songs alone, including a song called “Run Through the Jungle” from their 1970 record Cosmo’s Factory.  When he wrote the song, as the sole songwriter, he alone owned the publishing copyright to the song.*  See U.S. Copyright Act section 201(a).  Remember, while the Copyright Act determines the identity of the “author” of any song, that author is entirely free to transfer any or all of the rights inherent in a copyright** to anyone else.  See U.S. Copyright Act section 201(d).  This is exactly what happened in Creedence’s 1967 contract with Fantasy – the group transferred the publishing rights of their songs to Fantasy’s publishing subsidiary.  Therefore, by the mid ’80′s, Fantasy had long owned the publishing copyrights to Creedence’s songs, including “Run Through the Jungle.”

* As performers on the recording of “Run Through the Jungle” on Cosmo’s Factory, the Creedence members jointly owned the copyright in the sound recording itself.  See U.S. Copyright Act section 201(c).

** Section 106 of the Copyright Act provides the owner of a copyright the exclusive right to reproduce the work, prepare derivative works, distribute copies of the work, perform the work publicly, distribute the work publicly, and perform the work publicly.  We’re about to learn more about the right to prepare derivative works and to perform the work, so, you know, remember those two.

Still with me?  Now, the first song on Centerfield is a song called “The Old Man Down the Road.”  Zaentz heard the song and decided that “The Old Man Down the Road” is essentially the “Run Through the Jungle” music with new lyrics.  If your band took the music from a Creedence song and slapped some new lyrics on it, you’ve essentially created a work derivative of the Creedence song.  Of course, per Section 106 of the Copyright Act, only the owner of the publishing copyright to a Creedence song can legally make a work derivative of that Creedence song.

So Zaentz decides that “The Old Man Down the Road” is a derivative work of “Run Through the Jungle” and thus infringing upon a copyright owned by Fantasy Records.  Never mind that Fogerty actually wrote. both. songs.  This was pretty much the first time in the history of American jurisprudence that someone defended a suit for infringing the copyright of a song they wrote.  In Zaentz’s defense (or maybe just the defense of his legal counsel), I will say this – prior to Fantasy, Inc. v. Fogerty, this argument makes some measure of sense from a legal standpoint, so long as, you know, you can completely overlook the more practical point of view.  Fogerty assigned the publishing copyright to “Run Through the Jungle” to Fantasy, and it’s hard to deny that “The Old Man Down the Road” bears some resemblance to “Run Through the Jungle.”  Had the songs not shared an author, I would likely advise Fantasy to bring an action against the author of “The Old Man Down the Road.”

So what happens next?  The case goes to trial in 1988.  Fogerty has to bring in a guitar and play parts of both songs for the jury.  He also explains his songwriting process and contends that the only similarities between the songs are incidental to his own distinctive style and not a result of similar compositions.  Unsurprisingly, the jury ruled in Fogerty’s favor.  Really, is there a jury on the planet that would rule that anyone could plagiarize themselves?

Giving at least some (ahem) credence to my argument that Zaentz’s lawsuit made sense from a legal standpoint, the trial court judge refused Fogerty’s request that Fantasy should pay the legal costs he incurred.  At the time, precedent in the Ninth Circuit Court of Appeals held that a successful defendant in a copyright infringement suit could only recover legal costs if the lawsuit was frivolous or filed in bad faith.  Thus, the real legal legacy of the Zaentz/Fogerty feud is the opinion in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) in which the U.S. Supreme Court held that a copyright infringement lawsuit need not necessarily be filed in bad faith for a court to award a successful defendant legal costs from the plaintiff.   Ultimately, Zaentz had to pay Fogerty the legal fees he racked up defending what I would contend is one of the more ridiculous and spiteful copyright infringement lawsuits ever filed.  So the twenty five year saga of the Fantasy-Fogerty feud finally comes to any end in 1994 on the steps of the Supreme Court.*

* Actually, the Supreme Court remanded the case back to the District Court for the Northern District of California, where the trial court then awarded Fogerty legal fees from Fantasy.  It just sounds so much more dramatic to say that the feud ended on the steps of the Supreme Court.

So there you have it.  The end of Fogerty and Fantasy.*  Oh, but intrigue!  In September 2005, Fantasy issued a press release announcing – wait for it – that John Fogerty resigned with Fantasy!  By this time, Zaentz no longer had any stake in Fantasy, which is now owned by the Concord Music Group.  The signing kind of makes sense, as Concord co-founder Norman Lear vowed that the company would restore the royalty rights Fogerty gave up to get out of his Fantasy contract 30 or so years prior.  The first step was to issue a Fogerty retrospective set, including both Creedence and Fogerty solo tracks.

* Though it was not the end of Fogerty’s love affair with the legal system.  Some years later, Fogerty sued former band mates Stu Cook and Doug Clifford for trademark violation and copyright infringement for playing Creedence hits and touring under the name “Creedence Clearwater Revised.”  But this is a fascinating story for another time.

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So THERE you have it.  I’ve been trying to come up with a good conclusion to this story, perhaps elucidating something approximating a moral.  I guess it really just comes down to the following phrase:  have a lawyer review your contracts so you know what you are getting into!  You just never know when you could become incredibly famous and then have to defend against a lawsuit from your equally stubborn and litigious former label owner claiming something utterly random, like that you infringed your own song.