John Fogerty’s self-plagiarism lawsuit is not his only encounter with the courts, of course. He also sued former bandmates Stu Cook and Doug Clifford for using the name “Creedence Clearwater Revisited” for their band. (A very good band, by the way—their CD is great.) But in April of last year, Fogerty also prevailed in a lawsuit brought by an audience member who alleged that Fogerty’s music was so loud as to harm his hearing at the concert. At the risk of incurring the Curmudgeonly Clerk’s Liebeck-style harping, let me say that I consider such a claim ludicrous.
The court held for Fogerty, noting that “Although not necessary to the instant decision, this Court notes that Mr. Fogerty, whose sound might be characterized as bluesy, good-time, roots-rock, has never been thought of as particularly loud, in contrast to, say, such 1960s groups as The Who, Led Zeppelin, and the Rolling Stones, or their presumably even louder 1970s progeny, such as Black Sabbath, Kiss or Aerosmith.” Powell v. Metropolitan Entertainment Co., Inc., 195 Misc.2d 847, 849 n. 1 (N.Y.Sup. 2003). The opinion, studded with quotations from Fogerty’s songs, held that
there is no standard of care by which a jury could determine on the evidence presented that defendants had breached a duty owed to plaintiff. Without knowing what is “too loud,” and without knowing how loud the concert actually was, a jury would have to engage in double speculation to conclude that defendants’ music was “unreasonably loud.” Second, the doctrine of primary assumption of risk bars the instant action.
Id. at 850. I’d say that’s a reasonable conclusion, as was the court’s observation that
If the overall understanding between [rock music’s] patrons and producers was that “excessive” noise by the latter is actionable, one would expect a long list of cases in which claims by the former were sustained. Instead, this Court’s attention has been drawn to one, somewhat distinguishable, case...in which the patron of a bar was allowed to proceed with a suit alleging that her hearing was impaired because the disc jockey varied the volume of a song he was playing to accentuate a certain refrain (“hey bartender”). Surely this dramatic absence of litigation, in what is perceived to be such a litigious nation, speaks volumes to the fact that the principle applicable to the social compact governing the volume at Rock & Roll concerts is caveat emptor.... Litigation by an “eggshell ear” plaintiff is not an appropriate means to impose an unlegislated noise code upon performers...and their legions of screaming fans.... [T]he instant plaintiff is in the position of an “eggshell skull plaintiff” who chose to stand in a thunderous hailstorm....
Id. at 852.
