1 November 2022Copyright

Q&A: Johnny Depp’s ‘Hobo’ poem dispute

Johnny Depp and guitarist Jeff Beck stand accused of plagiarising a poem that emanates from the US Black oral tradition in a song that features on their latest album, “18”.

Back in August, renowned Black folklorist Bruce Jackson sent cease and desist letters to the  actor and musician, arguing that they had infringed the copyright of “Hobo Ben,” a poem by an unknown author that had been passed down through the generations.

The pair responded by filing a lawsuit against Jackson this month, insisting that he had no ownership rights to the poem and is engaging in “an old-fashioned shakedown”.

WIPR speaks to copyright expert  Ross Bagley, partner at  Pryor Cashman, about why this case is unusual, and what the implications may be concerning the use of non-copyrighted material that also derives from folklore.

Why is this case stoking controversy?

This case raises questions about who, if anyone, owns the right to a poem or ‘toast’ (a form of Black poetry) named “Hobo Ben”, which was handed down through the Black oral tradition.

Bruce Jackson, a folklorist and professor at the University of Buffalo in New York, transcribed the toast in his 1974 book, “Get Your Ass in the Water and Swim Like Me”, and it also appeared on his 1976 album of the same name.

Jackson discovered Hobo Ben in 1964 after a conversation with an ex-convict identified as Slim Wilson. In 2022, Jackson discovered that lines from “Hobo Ben” appeared to be copied verbatim in a song titled “Sad Motherfuckin’ Parade” released by Johnny Depp and Jeff Beck on their album, “18”.

Jackson claimed that Depp and Beck had infringed his copyright in “Get Your Ass in the Water and Swim Like Me”, and the duo responded by filing an action in federal court seeking a declaration that Jackson had no rights in the allegedly copied material.

What are the likely arguments from both sides?

In order to assert a claim for copyright infringement, a plaintiff must identify a work that is both fixed in a tangible medium and original to them. The lawsuit by Depp and Beck argues that even if “Hobo Ben” were copied, it is in the public domain and not original to Jackson, who merely transcribed it.

In order for Jackson to assert a claim in response he would have to identify something sufficiently original that he contributed in his transcription of “Hobo Ben and show that Depp or Beck specifically copied that original contribution.

Why is this case notable?

This is an unusual case, because the plaintiffs are acknowledging copying but challenging ownership because the work isn’t original to the defendant.

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.

This is also unusual because the alleged infringers commenced the action against the party claiming rights and because of the unknown origins of “Hobo Ben”.

Like many ribald limericks, erstwhile jokes or campfire ghost stories handed down orally, it appears to be unknown who authored “Hobo Ben” or when and how it may have changed over the years in its retelling. It also appears that Jackson is primarily concerned with Depp’s and Beck’s non-attribution of the lyrics to Slim Wilson, rather than protecting anything original that he contributed to “Hobo Ben”.

What are the likely implications for copyright owners and creators?

If Depp and Beck prevail, it should strengthen the rights of artists to create new works using material that is not copyrighted or flows from the public domain without concerns that artists who have also drawn on such material can assert infringement claims.

Conversely, when an artist uses material like this, they may want to identify the cultural or folklore tradition from which it was drawn to avoid a charge of plagiarism. From a cultural perspective, this is reminiscent of cases filed in 2019 alleging that dance moves by Black performers, which may not have been protected by copyright, were being unfairly used in the videogame “Fortnite” without attribution or compensation.

The coverage this matter has received may have already achieved Jackson’s goal of drawing attention to the history and source of “Hobo Ben”. At the same time, the lawsuit filed by Depp and Beck may well confirm artists’ rights to use works in the public domain or with an unidentifiable origin without risking liability under the Copyright Act.

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