“Fixin’ to Sue Rag”

Country Joe was sued for copyright infringement by the daughter of Kid Ory, who claims Joe’s “Fixin’ to Die Rag” is derived from Ory’s “Muskrat Ramble.” Joe replies on his site:

I wrote “Fixin’ To Die Rag” in 1965 to warn of our nation’s unwise escalating war in Viet Nam. “Fixin’ To Die Rag” is my original song. It is based on traditions of rag music and social protest lyrics. It does not infringe any copyright.
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.

Country Joe McDonald
October 2002
Berkeley, California

I will leave it for the readers to listen to the two songs and judge for themselves on the merits, but I do think 37 years is a long to wait to press such a case.