By Roy Kasten
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On October 21, U.S. District Judge Donald Stohr dismissed piano legend Johnnie Johnson's lawsuit against Chuck Berry, almost exactly two years after the claim -- in which Johnson argued that he deserves co-writing credit for at least 30 of Berry's songs -- was filed. Lawyers for Berry's longtime sideman argued that although the statute of limitations for royalty claims is only three years and the songs in question were written approximately 45 years ago, the statute should be waived because Johnson is borderline mentally defective. The judge didn't buy that argument; in his order, he wrote that the 77-year-old appeared competent to recognize his rights. Unless Johnson's lawyers appeal, this sad chapter of rock & roll history is officially closed.
The suit might be settled, but that doesn't mean both sides are ecstatic or that the real question of authorship is conclusively resolved. The judge took the simplest route possible, an outcome that's highly unsatisfying to anyone with an emotional hankering for the Ultimate Truth. The opposing lawyers both believe they could have won their cases before a jury.
Says Joe Jacobson, Berry's lawyer: "Let's say the copyright act had no statute of limitations at all. We'd still win because I think we could prove pretty persuasively that Johnnie Johnson was not a co-author and really made very few contributions to the songs, other than his actual performance."
Counters Mitch Margo, Johnson's lawyer: "If we'd have gone to trial, we'd have won. I believe it from the depositions we took, the mediation we had." Margo says he had lined up witnesses who could testify in Johnson's favor but declines to identify them in case his client appeals.
The lawyers agree on one thing: The case was complicated. One reason, Jacobson says, is that Johnson's lawyers changed their strategy. Initially they argued that the statute of limitations didn't apply because Berry purposely misled or took advantage of Johnson; later they argued that Johnson's judgment was impaired because he was an alcoholic and also mentally defective. But in a deposition, Johnson claimed that he was never incapacitated by his drinking and that the only reason he didn't bring a suit against Berry earlier was that he didn't think he could afford a lawyer. [This changed when Johnson met Texan multimillionaire, George Turek, who encouraged Johnson to take legal action and then paid his legal bills.]
Niggling questions remain: If Johnson is as mentally defective as his own lawyers argue he is, how can he be considered a credible witness about events that took place more than 40 years ago? If he's highly "subject to suggestion," as the plaintiff's psychologist attests, who's to say he isn't merely repeating charges he's heard fans such as Keith Richards make over the years? Moreover, Johnson's never claimed to have written any of the lyrics, certainly the most characteristic aspect of Berry's songs, and most of the music in question is derived from standard blues-chord progressions.
Asked how Johnson can claim credit for songs on which he didn't even play piano, Margo argues that the liner notes in the Chess boxed set are incorrect: "I can't tell you what songs they were, but certainly Johnnie Johnson can recognize his piano playing versus someone else's." But how to prove it, given that "mentally defective" Johnson is the only witness? "I would put him behind a piano and show you what he can do, and we'd compare it to what Chuck Berry can do," Margo replies.
The musical-proficiency argument doesn't hold water. Johnson might be a better musician than Berry from a technical standpoint, but that doesn't mean he wrote the songs. Country-soul great Arthur Alexander (whose songs "Anna" and "You Better Move On" were famously covered by the Beatles and the Rolling Stones, respectively) didn't play an instrument at all and couldn't read music. He hummed the melodies to his backing bands until they worked out the arrangements he wanted, and Alexander received the full songwriting credit. Because no one was rolling tape during Berry's and Johnson's jam sessions, it's one man's word against another's.
Interestingly enough, the two principals seem to be the least acrimonious people in Johnson v. Berry. During the proceedings, Johnson and Berry chatted about old times and seemed downright friendly. Berry didn't blame Johnson for the lawsuit. In an interview with Radar Station last year, he said, "It's not Johnnie that's doing this. I've known him 40 years. Someone inspired him to go along with him and seek their desire to try for an easy dollar."