Actor and musician Johnny Depp is back in court. No, not against his former wife Amber Heard, but in an action against a Buffalo professor who has alleged that he and his musical partner Jeff Beck plagiarized one of the songs on their latest album, “18.” At issue are lyrics allegedly taken from a toast called “Hobo Ben” by Slim Wilson, a Missouri prisoner featured in a 1974 book by folklorist Bruce Jackson. Jackson is a Distinguished Professor at the University of Buffalo and is the author of “Get Your Ass in the Water and Swim Like Me,” which contained the toast. On the merits, Depp has a strong argument against this copyright claim in my view.
Depp and Beck recount in their complaint that
“sometime in the 1960s Defendant met a federally incarcerated character pseudo-named “Slim Wilson” – who may have actually been named Willy or Willie Davis – who apparently shared many stories and poems from his life with Defendant. During one of their meetings in federal prison, Defendant recorded Mr. Wilson reciting the “Hobo Ben” toast.”
Jackson was featured in a Rolling Stone article and made the claim that Depp and Beck only contributed a couple original lines to the song. However, he later went further to claim that he has a claim to the toast since it was contained in his authorized recording of “Hobo Ben.” That legal claim is the focus of the complaint and is clearly novel since he does not claim to be the actual creator of the toast.
“Hobo Ben” included lines that appear in the lyrics: “I’m raggedy, I know, but I have no stink / God bless the lady that’ll buy me a drink” and “What that funky motherf**ker really needs, child, is a bath.” The song, “Sad Motherf**kin’ Parade,” also includes the line “you better try to keep you ass in this corner of shade/’cause if the Man come you make a sad motherf**kin’ parade.”
Jackson sent demand letters to the musicians claiming a copyright violation. Depp and Beck responded with the filing in the U.S. District Court for the Western District of New York for a declaratory judgment.
The complaint acknowledges the obvious overlap with the toast but insists that it still remains their own creative product.
Most importantly, it attacks the claim that Jackson would have a copyright right simply because he recorded Wilson and published the words. The plaintiffs acknowledge that there may be uncertainty on the origins of the particular words but there is absolute clarity on the lack of a basis for a copyright claim:
“What is clear about the origins and creation of the ‘Hobo Ben’ toast is that it was not created or written by Defendant. What is also clear is that Defendant owns no copyrights in the ‘Hobo Ben’ toast and, if any copyrights do exist in it, they were never assigned or otherwise transferred to Defendant.”
I am not a copyright lawyer but the complaint seemed fairly convincing on the dubious basis for such a claim. Indeed, the complaint raises questions over the actual creator of the toast:
“But even Mr. Wilson, whoever he may have been, was not the author of the “Hobo Ben” toast, as explained by Defendant in his book as follows: “Slim hoboed, as did his father, from whom he learned this toast” (GYA Book, p. 98) (emphasis added). Defendant also wrote about Mr. Wilson: ‘From his father he learned #19, ‘Hobo Ben,’ #32, ‘The Pimp,’ and many other toasts. We used to sit around, we used to have parties at the house with the company there and they used to go just backwards and forwards with them.’”
It would seem an extraordinary extension of copyright laws to cover lines taken from folklore. Depp and Beck argue that “In fact, as part of a “folklore” or “oral tradition” apparently passed down for generations as Defendant himself explained in his GYA Book, it is not clear at all that anyone owns copyrights to the words of the “Hobo Ben” toast.”
What is interesting is that the complaint does not deny that the lines may have been lifted from the toast: “While there may be elements of the SMP song that mirror the words of the “Hobo Ben” toast, the SMP song itself is an original work of authorship and creativity by Plaintiffs.”
Here is the complaint: Depp v. Jackson
Who is expecting Depp and Beck to be making much money on this song?
Always tough to distinguish between the general zeitgeist in the creative realm and theft of IP, I’m totally sensitive to the topic. Having said that, there is a general paranoia about getting caught up with an IP theft scenario…, it’ll shut the in door down at points. I’ve worked in tv and film where this is absolutely the case, but music is as charged.
Jonathan: I’m a big Jonny Depp fan but, please, his latest lawsuit is really not worthy of a long column that distracts from more important news. So allow me to digress.
NY AG Letitia James is in the news but for reasons unrelated to her lawsuit against the Trump Organization. James just announced a major settlement against the Roman Catholic Church. The Church has long been accused of protecting pedophile priests. James announced a settlement agreement with the Catholic Diocese of Buffalo alleging the it colluded in clergy abuse of children. The agreement specifies the Diocese has agreed to an annual compliance audit by a former FBI official that will mange sexual abuse complaints for at least 3 years. This follows a 2020 civil lawsuit accusing the Diocese of sheltering pedophile priests by letting them either relocate to another Diocese or just step away from their “priestly” duties to avoid accountability. The NY Diocese filed for bankruptcy in 2020 after a flood of lawsuits by victims of priest sexual abuse. James also got the Diocese to agree that Bishop Emeritus Richard Malone and former Bishop Edward Grosz will be banned from holding any secular role with any charity registered in NY. Sound familiar? This is exactly what James did with the Trump Foundation when she forced Donald Trump to shut down his so-called “charity” because he was using donations for political purposes. In that settlement Trump and his kids are prohibited from serving on the board of any NY charity. No wonder Trump considers James his mortal enemy. But James has proved she is not a “one note samba”. She is pursuing all sorts of criminal behavior in NY.
And Clarence Thomas is in the news this week. On Monday he refused to recuse himself in another important case related to the J. 6 insurrection. Thomas put a temporary freeze on an order by a grand jury in Atlanta that Sen. Lindsey Graham must testify re his efforts to change the 2020 election results in Georgia. Graham claims what he did for Trump was just trying to ensure the “integrity” of the election. Thomas should not have intervened. Why? Because his wife was directly involved in trying to overturn the election. Thomas should have recused himself and his refusal indicates why the public’s faith in the SC is justifiably disappearing. There are important constitutional issues involved here. Why are you ignoring them?
So, by default, it seems my role is to point to issues you apparently find not important. Is Johnny Depp really more worthy of comment than the damage Clarence Thomas is doing to the fair and impartial administration of justice?
Depposition
I wonder how many defamation suits were initiated by the auto speller. A definite plague on our time. Imagine John Fetterman using the screen at the debate and the auto speller going on the fritz or could actually work as designed. Which would be worse?
I’d like to see the: Cease and Desist letter(s).
Call Jackson Brown, This sounds more like: Jackson Browne – Lawyers In Love (1983)
I have some personal experience with Copyright law; Jackson is going to lose this case because he has no reasonably justifiable legal claim to any copyright of the specific toast in question, Jackson is not the originator of the toast period and end of discussion. Plus; based on the information provided by Jackson in his own book, the toast was already in the public domain prior to the initial recording and Jackson clearly knows this fact. Jackson’s claim of plagiarism is so blatantly false that it’s not even a reasonable claim made in good faith!
In my opinion, Jackson is intentionally lying and Johnny Depp & Jeff Beck might have a very reasonable defamation case against Jackson.
Dang stupid auto speller, that should be “copyright” in all spots.