Blues Law: Hound Dog vs. Bear Cat

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18 Bacon Blues 970×90
The infamous Rufus Thomas "Bear Cat" record
The infamous Rufus Thomas “Bear Cat” record

Any true blues fan is familiar with the Leiber and Stoller hit song, “Hound Dog.” It was originally recorded by Willie Mae “Big Mama” Thornton in 1952 and released the following year on Peacock Records. Freddie Bell and the Bellboys’ 1955 version would go on to become the template for Elvis Presley’s 1956 hit. The song would not only encourage the trend of rock ‘n’ roll singers doing covers of R&B hits, but would also inspire many cover versions in different genres, as well as parodies and “answer songs.” “Hound Dog” would eventually become one of the most litigated songs in recorded music history; a lawsuit filed in 1953 over one answer record in particular would force Sun Records owner, Sam Phillips, to the brink of filing bankruptcy and finally to the decision to sell his contract with Elvis Presley to RCA.

When I interviewed Mike Stoller, co-author of “Hound Dog,” he explained that the song came together very quickly. Leiber and Stoller were invited to meet with R&B writer, musician, and bandleader, Johnny Otis. Stoller described hopping into his 1937 Plymouth with Leiber, racing down to meet with Otis, and listening to Big Mama Thornton sing. Knocked out by Thornton, the songwriting duo raced right back to Stoller’s house and, within fifteen minutes, composed what would eventually become one of the biggest selling singles of all time, included in the “500 Greatest Songs of All Time” by Rolling Stone Magazine. They returned to Otis’ home to present the song to Big Mama. Thornton sang the song; however, as Stoller described it, it wasn’t quite right. Leiber and Stoller convinced her that the song needed a more “growling” vocal quality. After a brief exchange, she agreed to try the vocals as suggested, and the band got the groove right with Otis leading from behind the drum kit. The next day at the studio, the sound wasn’t right with Otis in the booth instead of on the skins. So, Otis turned the control room over to Leiber and Stoller and then sat down at the drums. Recorded in just two takes, the result was a smash R&B hit.

Within months of the release, Big Mama Thornton’s “Hound Dog” hit number one on the R&B charts. This was Thornton’s first big hit, and many other artists and labels were quick to try and cash in. While Thornton’s original was still on the charts, Little Esther recorded a version, as did numerous other R&B and country singers. Additionally, there were numerous “answer songs” which were common during the 1950s. Among the more popular answers songs were John Brim’s “Rattlesnake,” Roy Brown’s “Mr. Hound Dog’s in Town,” and Jimmy Wilson’s “Call Me a Hound Dog.” The most successful answer song was Rufus Thomas’s “Bear Cat,” released on Sun Records. Sun Records owner Sam Phillips, after hearing the Thornton hit, quickly re-wrote the lyrics to “Hound Dog.” Phillips’ new lyrics were written from a male perspective. Without changing the melody or chord structure, Phillips called local disc jockey Rufus Thomas to see if he’d be interested in singing the song. Using an arrangement based on the Thornton record, the Rufus Thomas song was a virtual copy, complete with cat meowing and hissing sounds to mimic the barking in the original. “Bear Cat” was also an immediate hit. Released just weeks after the Thornton’s “Hound Dog,” “Bear Cat” raced to the number three spot on the R&B charts.

Peacock Records owner Don Robey was also the owner of Lion Music Publishing Company, with whom Leiber and Stoller signed. Robey originally registered “Hound Dog” listing himself and Thornton as authors, then amended the copyright to credit Leiber, Stoller, and Otis. This was because Otis had falsely told Robey he was a writer of the song and that he had power of attorney for Leiber and Stoller. Leiber and Stoller, who were still in their late teens, had to have their mothers sign the contracts with Lion Music. Robey, like most publishing company owners at the time, had already retained legal services to protect his works; he was quick to contact Phillips regarding the licensing of the song that now belonged to his publishing company. When Phillips refused to respond, Robey filed a lawsuit against Sun Records and Sam Phillips for copyright infringement, requesting royalties and damages. Robey and his company prevailed, and Phillips was required to pay. Sun Records, already in a financially unstable position, could have gone under. It is reported that Phillips was required to pay to Lion 2% of royalties for “Bear Cat” as well as court costs. It is no coincidence that Phillips subsequently decided to sell the Elvis Presley contract to RCA Victor for an estimated $35,000.

This would only be the beginning of litigation over “Hound Dog.” Robey’s company would regularly defend its interest in the song in court, notably against Johnny Otis. Under exclusive contract to Valjo Music Publishing Corporation, a subsidiary of King Records, Otis had been listed on the original registration as a writer of “Hound Dog.” King/Valjo filed suit against Lion for royalties due on the Thornton original. Lion responded by filing a countersuit against King for their release of the cover version by Little Esther. Lion would prove successful in court, and Johnny Otis would be removed as a credited writer.

In October of 1956, after the success of Presley’s “Hound Dog,” Otis and Valjo filed a lawsuit for ownership and publishing rights, again claiming authorship of the song. Otis filed suit in the Southern District Court of New York against Elvis Presley Music, Inc., Jerry Leiber and Mike Stoller. According to the official court transcripts, Big Mama Thornton testified that Otis had no part in the writing of the song, and that she had contributed her improvisational comments during the guitar solo. The court ultimately ruled against Otis, and the sole credit of authorship went to Leiber and Stoller.

In May of 1973, Don Robey sold his interests to ABC-Dunhill Records. Among the songs from the Lion Music and the Duke/Peacock and other subsidiaries were the rights to “Hound Dog.” According to Stoller, part of the deal between Robey and ABC-Dunhill was a payment to Leiber and Stoller for all outstanding domestic and foreign royalties collected to that point. It was a simple settlement arrangement between Leiber and Stoller’s attorney and the two other entities. As he recalls, there was no need for a lawsuit, just a simple settlement offer and acceptance.

“Hound Dog” has received numerous honors and distinctions. A hit on the R&B, Country and Pop charts by various artists, the Presley version was number one on all three in 1956. Both the Thornton and Presley versions have been used in countless films, as well as being included in the 1995 Broadway musical, Smokey Joe’s Café, and the 2005 musical, All Shook Up. Since its release, countless artists have covered “Hound Dog,” including Eric Clapton, Jimi Hendrix, John Lennon, and Macy Gray. The Presley version was inducted into the Grammy Hall of Fame, and the Rock and Roll Hall of Fame has included it as one of the top 500 songs that shaped Rock and Roll, suggesting that licensing opportunities are still available.

When asked what advice he would give to songwriters about legal issues, Stoller replied, “When you start out, everybody rips you off… it is a part of growth.” The lesson he learned along the way was that you “need good representation to handle all the copyrights.” As far as “Bear Cat” (which now lists Leiber and Stoller as the writers) goes, Big Mama Thorton sang it best over sixty years ago: “You told me you was high class, but I can see through that…and daddy, I know, you ain’t no real cool cat!”