“This is an unusual case, in which the plaintiffs are acknowledging copying but challenging ownership because the work isn’t original to the defendant.” – Ross Bagley
Johnny Depp and guitarist Jeff Beck filed a lawsuit last Friday against folklorist and SUNY Buffalo professor Bruce Jackson, who accused the pair of plagiarizing a song on their latest album, “18”. In two demand letters the folklorist sent in August, Jackson alleged that Depp and Beck infringed the copyright of the poem “Hobo Ben” by copying entire passages.
However, in their lawsuit filed in the U.S. District Court for the Western District of New York, Depp and Beck’s lawyers argue that Jackson never owned the copyright to “Hobo Ben,” as it was “part of an oral tradition passed down for generations and performed by an unidentified individual.” Therefore, they are asking the judge for a declaration of noninfringement, so the pair can “preserve their rights, defend their good names, and protect their business and business relationships.”
According to the lawsuit, sometime in the 1960s, Jackson met a federal inmate named “Slim Wilson” who shared multiple stories and poems about his life. During these meetings, Jackson transcribed the poem “Hobo Ben” and later published it and other poems from Wilson in his 1974 book, Get Your Ass in the Water and Swim Like Me. Slim Wilson is a pseudonym and his exact identity is unknown.
The lawsuit quotes Jackson’s book, in which he said, “by saying the toasts are poems from oral tradition, I mean they may have had a number of authors rather than just one, or, to put it another way, various audiences have had an opportunity to modify the points or parts they didn’t much like. The process of modification may have occurred over a considerable number of years, by different hands at different times.”
While Jackson does not claim ownership of the poem itself, he does have copyright over the transcriptions of the song, which were recorded for his book and a later recorded album. But Depp and Beck claim he owns no copyright over the words in the poem.
Owning Oral Tradition
The professor and folklorist accused the musical duo of copying “nearly every single word” from the “Hobo Ben” poem.
Jackson told Rolling Stone that he could only find two original lines from Depp and Beck in the song and said “everything else is from Slim’s performance in my book. I’ve never encountered anything like this. I’ve been publishing stuff for 50 years, and this is the first time anybody has just ripped something off and put his own name on it.”
Depp and Beck are credited as the original writers of the song and there is no mention of Jackson, his book, or Slim Wilson. Depp and Beck’s lawyers do not refute the similarity between Jackson’s poem and the song, but instead, they argue the “defendant owns no copyrights in the words to the ‘Hobo Ben’ toast.”
In 1976, Jackson recorded an album with the same name as his book in which he performed “Hobo Ben” among other poems. But according to the lawsuit, ownership of the story behind “Hobo Ben” is unclear. In his book, Jackson wrote that Slim Wilson learned the toast from his father.
In the lawsuit, the musicians’ lawyers claim “his (Jackson’s) own copying of the toast into his book and subsequent recordings did not create any copyrights in those words.”
Ross Bagley of Pryor Cashman agreed with this sentiment. “If ‘Hobo Ben’ was handed down through an oral tradition, as Jackson seems to admit, and he merely transcribed it, then he probably does not have any basis to stop Depp or Beck from using it or to compel them to attribute it to Slim Wilson or anyone else,” Bagley told IPWatchdog in a written comment.
Legal versus Ethical
The legal case for Jackson’s copyright may be shaky, but there isn’t much doubt as to whether Depp and Beck pulled lyrics from the poem.
“This is an unusual case, in which the plaintiffs are acknowledging copying but challenging ownership because the work isn’t original to the defendant,” Bagley said. “To show ownership for a copyright claim, one must not only show the work was ‘fixed in a tangible medium of expression,’ but also that they added something original,” he added.
Depp and Beck’s lawyers claim the musical duo did not sample any part of Jackson’s 1976 recording, and therefore did not infringe. The lawyers do not make any claim that the musicians did not copy the contents of the story itself.
The lawsuit claims: “While there may be elements of the… song that mirror the words of the ‘Hobo Ben’ toast, the… song itself is an original work of authorship.”
While the lawyers make the case that there can be no copyright owned on the words transcribed by Jackson, Depp and Beck have been receiving plenty of negative press over the song. Articles in top music publications have been carrying the story of alleged plagiarism and questioning the ethics behind Depp and Beck’s tactics.
Jackson told Rolling Stone, “if it [Depp and Beck’s album] is selling, Johnny Depp is making a lot of money on it. Should it go to him, or should it go to some place that helps the people who produced this culture?”
The album received mixed reviews upon its release on July 15, 2022, just six weeks after Depp’s highly publicized defamation trial with his ex-wife Amber Heard.
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