The “Rag” Lawsuit

The Verdict

August 1, 2005, the Los Angeles Daily Journal (a legal newspaper):

Panel Upholds Copyright Ruling for Country Joe McDonald
By Draeger Martinez
Daily Journal Staff Writer

LOS ANGELES - The 9th U.S. Circuit Court of Appeals on Friday issued some legal tips for music makers: If you write an original song, better copyright it quickly. And if someone else violates that copyright, don't wait decades to sue them over it.

In doing so, a three-judge panel of the court affirmed a trial-court decision in favor of Country Joe McDonald.

McDonald is best known for performing at Woodstock in 1968 as part of Country Joe and The Fish. Babette Ory, who holds the copyright to the 1926 Dixieland/jazz classic titled "Muskrat Ramble," sued McDonald.

She claimed MacDonald ripped off "Ramble" via his war-protest anthem "I-Feel-Like-I'm-Fixin'-to-Die Rag," known better for its signature lyric, "And it's one-two-three, what are we fighting for?"

After McDonald recorded a new version of "Fixin'" in 1999, Ory - whose father Edward "Kid" Ory co-wrote "Ramble" with Ray Gilbert, now both deceased - registered copyright for "Ramble" in 2001, then sued McDonald in 2003 and 2004.

Babette Ory's lawsuits claimed the new version of "Fixin'" constituted a new infringement. But U.S. District Judge Nora Manella of Los Angeles disagreed. The 9th Circuit affirmed that decision. Ory v. MacDonald CV04-55858 (9th Cir. July 29, 2005).

In their ruling, 9th Circuit Judges Jerome Farris, Dorothy W. Nelson and Richard Tallman said failure to assert legal rights in a timely manner is the same as neglecting to assert rights at all.

"Ory's admission that 'every version of "Fixin'" contains the portion that infringes' demonstrates that there is no new infringing activity," the panel wrote. "Her mere assertion that the 1999 recording is a new instance of infringement [which] is 'qualitatively' different [is] not enough to defeat summary judgment."

The panel also upheld Manella's decision that Ory should pay MacDonald's legal fees.

MacDonald expressed satisfaction over the ruling.

"I'm very, very happy with the court's decision," said MacDonald, a longtime Berkeley resident. "This was a nightmarish experience for me, and I'm very glad that it's over with."

Neville Johnson of Johnson & Rishwain in Los Angeles, the attorney representing Ory, declined to comment. He said he had not read the decision.

Evan Cohen, a veteran music attorney with no connection to the case, said the MacDonald decision wasn't a close call.

Cohen argued and lost Jackson v. Axton, the 1994 9th Circuit case that centered on the copyright of "Joy to the World" and set the standard in such disputes.

"That case says that, notwithstanding any other statues of limitations, if a copyright suit is brought, sometimes it's not fair to wait that long," Cohen explained.

"The statute of limitations in these suits runs three years and it starts running as soon as you learn, or should have learned, of the violation," Cohen said. "Just because MacDonald made a new arrangement of 'Fixin'' doesn't mean that the clock would be reset."

Now in his 60s, MacDonald continues to record and tour -- in fact, last year he launched a reunion tour with two of his three former band mates. The sole holdout: guitarist Barry "The Fish" Melton, who became a lawyer and currently works as chief public defender for Yolo County.

© 2005 Daily Journal Corporation. All rights reserved.

July 29, 2005:

SAN FRANCISCO (Reuters) - A U.S. appeals court has rejected a lawsuit charging 1960s psychedelic rocker Country Joe McDonald with copyright infringement for his 1965 protest song "Fixin' to Die Rag," which became a rallying cry for opposition to the Vietnam War.

In a decision made public on Friday, the 9th U.S. Circuit Court of Appeals rejected an appeal from Babette Ory, who said McDonald's song infringed on jazz standard "Muskrat Ramble," credited to her father, Kid Ory.

Ory sued in September 2001, claiming that "Fixin' to Die Rag" was similar to and infringed on "Muskrat Ramble." Kid Ory, who recorded with jazz great Louis Armstrong, died in 1973.

The appellate judges upheld a lower-court decision saying there was too long a delay in bringing the copyright lawsuit and awarded McDonald his attorney fees. Ory obtained copyright to "Muskrat Ramble" in 2001.

McDonald wrote "Fixing To Die Rag" in 1965 to protest the nation's escalating military involvement in Vietnam and the song's refrain: "And it's one, two, three, what are we fighting for?" quickly turned into a rallying cry against the war and figured prominently at the Woodstock music festival in 1969.

The Original Trial

The judge has decided on my case and it is over ... unless the other guys decide to appeal. Excerpts from the Order Granting Defendants Motion for Summary Judgement, Case No. CV 01-8177 NM (AIJx):

"And it's one, two, three, what are we fighting for?" These words, penned by Country Joe McDonald some 38 years ago to protest the Vietnam War, could well apply to the action before the court today. It is undisputed that more than three decades elapsed from the time Plaintiff and her father first became aware of "Fixin" and Defendant received his first notice of alleged infringement. If ever there were a case that should be barred by the doctrine of laches*, this would appear to be it."

"Defendant has fully prevailed on the basis of his laches defense. In considering the factors outlined by Fogerty, the court finds that Plaintiff's decades-long delay in bringing suit weighs heavily toward the granting of attorneys' fees to Defendant. The court has found Plaintiff's claim of infringement at this late date to be unreasonable. Indeed, the instant litigation appears to have been motivated more by a desire to "erase" Defendant's song from the planet, than concern with protecting Plaintiff's recently acquired copyright in "Muskrat Ramble." Additionally, the Copyright Act's purpose of promoting creativity for the public good would be ill served by enjoining Defendant from performing or profiting from a song that Plaintiff concedes has become an "American classic" over the nearly four decades Defendant has been performing it. Accordingly, Defendant's request for attorneys' fees is granted."

"On May 9, 2003, Defendant filed the instant motion for summary judgment. Upon full consideration of the papers, the relevant authorities, and the entire file herein, the court granted Defendant's motion. The issues having been duly reviewed, and a decision having been duly rendered, It is Ordered and Adjudged that Plaintiff take nothing."

DATED: August 5, 2003

Nora M Manella
United States District Judge

A Statement on the "Fixin' To Die Rag" Lawsuit

No one ever complained to me that they thought a riff of my song might be too similar to a part of Kid Ory's Muskrat Ramble -- until last summer, more than three decades after my song became internationally famous -- for its lyrics. Babette Ory sued me in September 2001, claiming my song infringed her father's "Muskrat Ramble" tune. According to her, her father asked her in the early 1970s to "nail me" for the "profane lyrics" of my song.

Copyright infringement requires substantial similarity, no fair use, and no other valid defense. Ms. Ory's lawsuit should fail for each of these reasons.

First, my "Fixin' To Die Rag" is not substantially similar to "Muskrat Ramble." The lyrics are totally different, the sound and feel are totally different, the function of the songs are totally different. There are some similarities, but most rags share a very similar framework.

Our framers gave us an amazing Constitution, balancing various rights and limitations for the good of the people. The Constitution permits Congress to grant copyright; the First Amendment also promotes free speech. Congress grants authors copyright in original works and permits others to fairly use elements of copyrighted works.

The four principal factors in determining fair use (Section 107 of the Copyright Act) are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyright work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Political speech is strongly encouraged under the First Amendment, and as a foundation of our democratic republic.

"Muskrat Ramble" has been a popular and entertaining tune. Ms. Ory admits that my "Fixin' To Die Rag" has become "an American classic," but I don't consider it entertaining. I hope it encourages people in the United States and throughout the world to think and talk. Think about better ways to resolve disputes. Think about what it means to purposively kill other humans. Think whether the offered reasons and evidence to send our people to foreign lands to kill their people have been proved beyond a reasonable doubt. And talk about what should and should not be done. Talk with family, talk with friends, talk with co-workers, talk with neighbors, talk with your elected representatives.

Louis Armstrong claimed he wrote "Muskrat Ramble" but let Kid Ory take the credit and royalties. Sidney Bechet thought "Muskrat Ramble" was based on an earlier Creole tune, "The Old Cow Died." Now, 37 years after I started singing "Fixin' To Die Rag," Armstrong, Bechet, and Kid Ory have all died. When a plaintiff waits so long to file a lawsuit that important witnesses or other evidence are unavailable, the case should be dismissed for "laches," unreasonable delay and prejudice to the defendant. Ten years delay is often too long to wait. A third of a century of plaintiff's knowing delay is a long time; Ms. Ory's lawsuit is both meritless and stale.

Justice moves slowly. The case continues. Unfortunately, world politics have brought "Fixin' to Die Rag" back to center stage. People are crafting new lyrics for the current Mideast conflicts.

News Reports

Well, folks, last night (October 11, 2001) the lawyer finally found me at the Biscuits & Blues nite club in San Francisco where I was performing and during intermission I was served with lawsuit papers concerning "I Feel Like I'm Fixin' to Die Rag" vs. "Muskrat Ramble." Since I have been warned that singing the song in public will subject me to a $150,000 dollar fine I shall not sing the song anymore. Sorry about that, fans, but even though I get paid fabulously for my performances my fees are a bit less than $150,000 dollars a show .... so you can see how if I kept that up how soon I would be quite farther in debt than I am now. If you would like to sing the song yourself I guess you can ... subject to lawsuit ... or you can e-mail the attorney and complain or you can do nothing. Oh yeah, I have been informed that I must "destroy" all copies of "I Feel Like I'm Fixin' to Die Rag" so I will be quite busy smashing CD's around my house and that sort of thing ....

You Be the Jury Is Country Joe guilty of ripping off Kid Ory? Guilty Not Guilty 68% Guilty Not Guilty by Reason of Insanity I'm Hung

The Complaint

NEVILLE L. JOHNSON, ESQ.(Bar #66329)
BRIAN A. RISHWAIN (Bar #156403)
JAMES T. RYAN (Bar #210515)
JOHNSON & RISHWAIN LLP
12121 Wilshire Boulevard, Suite 1201
Los Angeles, California 90025-1175
(310) 826-2410
(310) 826-5450 (Fax)

Attorneys for Plaintiff,
BABETTE ORY

BABETTE ORY,
Plaintiff
v.
COUNTRY JOE MCDONALD, AKA JOE MCDONALD, ALKATRAZ CORNER MUSIC CO.,
Defendants.

CASE NO. 01-08177
COMPLAINT FOR:
COPYRIGHT INFRINGEMENT;
DEMAND FOR JURY TRIAL

1. This is an action for copyright infringement arising under the Copyright Act of 1976, U.S.C. §§101 et seq. This Court has jurisdiction of this action under 28 U.S.C. §§1331, 1338(a) and (b).

2. Venue is proper in this district under 28 U.S.C. §§1391 and 1400(a).

3. Plaintiff Babette Ory is a resident of the Central District of Los Angeles and certain of the copyright infringements have occurred in said district

4. Country Joe McDonald, also known as Joe McDonald, is a musician and songwriter ("McDonald"). On information and belief he owns and controls Alkatraz Corner Music Co. ("Alkatraz") which publishes the infringing song complained of herein. McDonald resides in Berkeley, California; Alkatraz' chief place of business is San Francisco, CA and is operated by Bill Belmont, a sophisticated music executive who is well aware of Kid Ory, and the unfair exploitation of Ory specifically and other Dixieland and jazz musicians generally, and who has counseled McDonald on how to deal with Ory.

5. "Muskrat Ramble" is a legendary, important musical composition in the Dixieland style. "Muskrat Ramble" was written as in instrumental by Kid Ory in 1924. It was original with Ory. It became a worldwide hit and "standard," and is the most famous song written by Kid Ory. It was written in the 1920's and copyrighted in 1926. Ory is the daughter of Kid Ory, owner of the copyright in the United States and other territories, and relies on "Muskrat Ramble" for her support. Kid Ory, raised on the streets of New Orleans, was a founding father of Dixieland music along with his great friend and collaborator, Louis Armstrong. Kid Ory, who died in 1973, was frequently taken advantage of by unscrupulous business persons and he and his heirs were and are naive in business.

6. "Muskrat Ramble" has been renewed and is subject to applicable term extensions in the United States. There has been full compliance with all statutory formalities including registration, deposit and payment of fees. It bears copyright registration number E637451, recorded May 1, 1926; renewed May 18. 1953, under entry R. 112140.

7. McDonald created "I Feel Like I'm Fixing to Die Rag," in or about 1965, and performed it initially as a member of Country Joe and The Fish. The song, a paean to righteous behavior. was a protest of the Vietnam war, and ironically parodies dishonesty. The song incorporates a substantial portion of the musical elements of "Muskrat Ramble" including the "hook" thereof and McDonald copied the same and admittedly uses the "riff" in his chorus. McDonald admits that Kid Ory was his first musical hero: Ory played trombone, McDonald's first musical instrument, who began the study of the same when he was ten years old. "I Feel Like I'm Fixin' to Die" is the signature song of McDonald, who frequently performs it throughout the United States. "I Feel-Like I'm Fixin' to Die Rag" is an American classic, which unfortunately is derivative of and infringes on the American classic "Muskrat Ramble."

8. On information and belief, McDonald has infringed the song in public performances on numerous occasions throughout the United States within three years of the date of filing of this action, including after having been notified on July 21, 2001, that Ory was asserting infringement by him. McDonald has also infringed the song within three years of the date hereof by recording, producing and releasing a sound recording, "I Feel Like I'm Fixin' to Sing Some Songs and Tell Some Stories, Some X-Rated," from a live concert given on October 22, 1999. He has continued to offer this LP on his website and for commercial sale since being notified of Ory's intentions. Other infringements are believed to have occurred and the complaint will be modified when they have been ascertained after discovery hereunder.

9. In the past year, during an interview with the California Polytechnic University radio station in Southern California, McDonald acknowledged stealing the "riff" of "Muskrat Ramble" for his use in "I Feel Like I'm Fixin' to Die Rag," admitting his song was "was a Dixieland riff from 'Muskrat Ramble'," that he was playing the chords to "Muskrat Ramble" when he "created" his song. Mr. McDonald's conduct since his creation and infringement of Muskrat Ramble has been intentional; he is a deliberate infringer. Indeed, through the last two decades, McDonald would not license the musical portion of "I Feel Like I'm Fixin' to Die Rag" because he was aware that to have done would incurred liability on his part as an infringement of "Muskrat Ramble," and McDonald has been and remains fully aware of the similarity between the two songs. Sadly, McDonald does not credit Ory with authorship of the music (or most of) "I Feel Like I'm Fixin' to Die Rag,"

10. Plaintiff is entitled to recover from Defendants damages, including attorneys' fees. Plaintiff will elect statutory damages or actual damages at trial.

11. Because Defendants' conduct was willful, despicable, fraudulent and oppressive, the Copyright Act provides that plaintiff may be awarded punitive damages, in an amount to be proved at trial.

12. Plaintiff seeks a permanent injunction prohibiting any further performances of "I Feel Like I'm Flxin' to Die Rag" by McDonald, as well as the impoundment and destruction of all infringing copies of the: song.

JOHNSON & RISHWAIN LLP

Dated: September 14, 2001

By: [signed] NEVILLE L. JOHNSON Attorneys for Babette Ory

Plaintiff demands a jury trial.

JOHNSON & RISHWAIN LLP

Dated: September 14,. 2001

By: [signed] NEVILLE L. JOHNSON Attorneys for Babette Ory

Correspondence

Mr. McDonald,

Bill Belmont says he is not authorized to accept service for you. As far as I am concerned, we don't need his authorization, I consider him your authorized agent. However, why don't you just agree to accept service. Otherwise, I am going to have to serve you at a gig, or track you down with a private eye. Please let me know your thoughts. Yours very truly,