By: Ian Robertson
“Stairway to Heaven” is often regarded as one of the greatest songs in rock and roll history, written by one of the genre’s most iconic bands.[1]The song was featured on Led Zeppelin’s untitled fourth album, which topped charts in both the United Kingdom and the United States (U.S.) in 1971.[2] “Stairway” opens with an ascending phrase characterized by Led Zeppelin’s guitarist Jimmy Page as a “fragile, exposed, acoustic guitar . . . with a Medieval feel.”[3] Forty-three years after the hit song’s release, this opening phrase became the subject of a major copyright lawsuit.
Randy Wolfe (1951-1997) was a guitar player for the U.S.- based band “Spirit” when he wrote a song called “Taurus” in 1967.[4] In 2014, the trustee of Wolfe’s estate, Michael Skidmore, brought a copyright lawsuit against Led Zeppelin claiming that “Stairway to Heaven” infringes on “Taurus,” which kicked off a lengthy legal battle over authorship of the song.[5]
This case rests on the “substantial evidence” test.[6] To prove copyright infringement of a song, it is the plaintiff’s burden to prove that (1) the plaintiff owns a valid copyright in the song and (2) the defendant copied protected aspects of the song’s expression.[7] Without evidence of direct copying, the plaintiff must (1) prove that the defendant had access to the protected song and (2) show that the two songs at issue are “‘substantially similar’ in idea and in expression of the idea.”[8] The 9th Circuit uses the extrinsic and intrinsic evidence tests to determine whether two works are substantially similar.[9] The extrinsic evidence test is objective, and applied by breaking down two works into their “constituent elements, and comparing the similarity of those elements.”[10] The intrinsic evidence test, also known as the “total concept and feel” test, asks whether the “ordinary, reasonable person would find the total concept and feel of the [two] works to be substantially similar.”[11]
At trial in the district court, the jury found that “Taurus” and “Stairway to Heaven” were not substantially similar under the extrinsic evidence test and therefore Led Zeppelin was not liable for copyright infringement.[12] On appeal, the 9th Circuit vacated and remanded the district court’s decision on the grounds that the jury was erroneously instructed in two ways.[13] First, the district court erred by failing to instruct the jury on “selection and arrangement,” meaning that the selection and arrangement of unprotectable musical elements are protectable.[14] Second, the district court erred in its “originality” instructions, meaning that the jury was incorrectly informed that elements of a song in the public domain are not copyrightable, even if they are modified in an original manner.[15] However, the 9th Circuit affirmed the district court’s key ruling that the scope of the “Taurus” copyright is limited to its sheet music deposit copy at the United States Copyright Office, and Skidmore has no valid copyright in the sound recordings of the song.[16]
On June 10, 2019, the 9thCircuit granted Led Zeppelin’s petition to hear the case en banc, and oral arguments were heard on Monday, September 23, 2019.[17] Led Zeppelin’s attorney asserted that any errors in the jury instructions amounted to technicalities that did not warrant a new trial.[18] Perhaps the most significant moment of oral argument was the Plaintiff’s concession that if the substantial similarity test is restricted to the sheet music deposit copies in the United States Copy office, then the plaintiff will necessarily lose the case.[19] The court also remarked that after 1976 the original sound recording could have been used as the deposit copy.[20] In light of this concession, the panel of judges wondered aloud whether any jury instruction errors were therefore harmless.[21] It remains to be seen whether the court will accept Skidmore’s argument that sound recordings should be permitted for the jury to consider.[22]
It may be months before the 9thCircuit renders a decision, but it will likely be one that resonates loudly in the music industry. There has been a slew of copyright lawsuits brought against successful artists by plaintiff’s attorneys representing lesser known composers and works in recent years.[23] In many cases, the ordinary listener can hear nothing to warrant substantial similarity to the point that “copying” has occurred.[24] Some lawyers have speculated that the law has come to a point where creative attorneys are able to complicate issues and use expert witnesses in a way that confounds the juries they face.[25] Indeed, Skidmore’s attorney has already proven himself adept at achieving large settlements in music copyright cases.[26] It is perhaps because of this recent trend that the both the U.S. Copyright Office and the Department of Justice are supporting Led Zeppelin in this case.[27]
Copyright law is a device meant in part to protect creative expression. But protection is neither the only nor the ultimate goal of the scheme. Copyright protection, under the Constitution, is meant to “to promote the Progress of Science and useful Arts.”[28] How the 9th Circuit decides to balance these goals in Skidmore v. Led Zeppelin will certainly be an important precedent for the future of copyright litigation in the music industry.
[1]See500Greatest Songs of All Time, Rolling Stone Mag. (Apr. 7, 2011) https://www.rollingstone.com/music/music-lists/500-greatest-songs-of-all-time-151127/.
[2]SeeBillboard 200: Week of December 18, 1971, Billboard,https://www.billboard.com/charts/billboard-200/1971-12-18(Dec. 18, 1971); All The Number 1 Albums, Official Charts Company, https://www.officialcharts.com/chart-news/all-the-number-1-albums__7949/#1970s(Sep. 27, 2019).
[3]Jimmy Page: How We Wrote Stairway To Heaven, BBC News,https://www.bbc.com/news/av/entertainment-arts-29550639/jimmy-page-how-we-wrote-stairway-to-heaven(Oct. 10, 2014).
[4]See Skidmore v. Led Zeppelin, CV153462RGKAGRX, 2016 WL 1442461, at *1-2 (C.D. Cal. Apr. 8, 2016).
[5]See id.
[6]See Skidmore v. Led Zeppelin, 905 F.3d 1116, 1137 (9th Cir. 2018).
[7]SeeRentmeester v. Nike, Inc., 883 F.3d 1111, 1116–17 (9th Cir. 2018); see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345,(1991)
[8]Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996); see also Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000) (discussing the higher standards for the “striking similarity” test, which was not at issue on appeal in this case).
[9]Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018).
[10]Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).
[11]212 F.3d at 485.
[12]Id.at 1137.
[13]Id.
[14]Id. at 1126, 1137.
[15]Skidmore v. Led Zeppelin, 905 F.3d 1116, 1130, 1137 (9th Cir. 2018).
[16]Id. at 1137.
[17]Skidmore v. Led Zeppelin, 925 F.3d 999, 1000 (9th Cir. 2019).
[18]Oral Argument at 37:15, Skidmore v. Led Zeppelin, 905 F.3d 1116, 1126 (9th Cir. 2018), reh’g en banc granted sub nom.Skidmore v. Zeppelin, 925 F.3d 999 (9th Cir. 2019) https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000016207.
[19]Id.at 9:20.
[20]Id. at 17:12.
[21]Id.at 10:12.
[22]Id.at 12:20.
[23]See Jessica Meiselman, The Katy Perry Lawsuit Shows Why Music Copyright Law Is a Mess, Vice, https://www.vice.com/en_us/article/43kgb9/katy-perry-dark-horse-lawsuit-shows-why-music-copyright-law-is-a-mess(Aug. 5, 2019).
[24]SeeAlex Abad-Santos, A Jury Said Katy Perry’s “Dark Horse” Copied Another Song. The $2.8 Million Verdict is Alarming,Vox, https://www.vox.com/culture/2019/7/30/20747100/katy-perry-dark-horse-joyful-noise-copyright-2-8-million(Aug. 2, 2019).
[25]SeeGene Maddaus, Led Zeppelin’s ‘Stairway to Heaven’ Copyright Case Argued at 9th Circuit, Variety, https://variety.com/2019/biz/news/stairway-to-heaven-copyright-case-9th-circuit-1203346055/(Sep. 23, 2019).
[26]SeeNick Vadala, Philly Songwriter Wins $44 Mil in Suit Over Usher Song, Philadelphia Inquirer, https://www.inquirer.com/philly/entertainment/celebrities/usher-lawsuit-44-million-bad-girl-stairway-to-heaven-20181019.html(Oct. 19, 2018).
[27]See Blake Brittain, Led Zeppelin Backed by U.S. in ‘Stairway’ Case, Bloomberg Law, https://news.bloomberglaw.com/ip-law/led-zeppelin-backed-by-u-s-government-brief-in-stairway-case(Aug. 16, 2019).
[28]U.S. Const.art. 1 § 8, cl. 8.
