In his 1965 protest song "I-Feel-Like-I'm-Fixin'-to-Die Rag," Country Joe McDonald sang, "One, two, three, what are we fighting for?" At the time, he was referring to the war in Vietnam. Today, those same words might be used in reaction to a copyright infringement lawsuit filed against him by Babette Ory, the daughter of jazz great Kid Ory.
Ory's daughter claims that McDonald's track rips off her dad's 1920s song "Muskrat Ramble," and that McDonald greatly profited from the theft. The suit further alleges that McDonald's infringement was intentional and she's seeking $150,000 for every time McDonald played the song over the last three
years. Ory's attorney Neville Johnson would not reveal the total number of infractions, but stated that Ory will also seek "substantial punitive damages," and that the total amount sought would be "well over $1 million."
"Muskrat Ramble" was originally copyrighted in 1926. The copyright was renewed in 1953, 20 years before Kid Ory died. Following his death, ownership of the song reverted to Ory's publisher. His daughter regained family control of the copyright this year under the Copyright Act of America.
Under U.S. copyright law, the owner's rights to a song last for 70 years after the death of the author. Johnson added that there is a three-year statute of limitations on copyright infringements, which means his client could only seek compensation from McDonald for his infringements over the past three years.
"This song generates a fair amount of money every year and we intend to collect the revenue," Johnson said.
McDonald said that he's been a fan of Kid Ory for many years, but refutes the accusation that he copped the tune.
"I was fiddling around on guitar and I played a series of chord patterns that were similar to the chord patterns in 'Muskrat Ramble,' he said Monday. "In 20 minutes I had written my song, which does not fit together with the song 'Muskrat Ramble.' The similar parts only make up a few measures of both songs. Also, in Kid Ory's recordings, he never played any melody in those
chords, and you can't copyright chord patterns."
McDonald has been sent a settlement proposal, and while he won't disclose the amount Ory is after, he says he couldn't afford to settle even if he wanted to.
"The amount they've demanded is over the moon," he said. "They haven't struck gold, I can tell you that. The song isn't a big commercial success. It's a controversial song. It's never gotten a gold record. You probably hardly ever heard it on the radio. And the meager royalties have been divided amongst the Country Joe and the Fish band members."
McDonald's band, one of the leading psychedelic political groups of the '60s, is perhaps best known for performing
"I-Feel-Like-I'm-Fixin'-to-Die Rag" at Woodstock. In 1969 the group broke up and McDonald continued as a solo artist. He has released more than a dozen records since 1970. His most recent album, Something Borrowed, Something New, came out in 1998.
"I'm just a musician who wrote a very controversial song in 1965 which I think almost everybody in America of a certain age has heard," he said. "And I never heard a word of complaint from anybody before now. According to Babette Ory, her dad died in 1973, and on his death bed said, 'Get that bastard McDonald.' I don't know why she waited so long and I don't know why they're implying that I'm a bastard."