Revival of “Stairway to Heaven” Copyright Lawsuit by 9th Circuit May Prove Costly for Led Zeppelin. –by Jonathan Safron.
Unlike Mike Myers in Wayne’s World, a three-judge panel of the 9th Circuit Court of Appeals stopped short of saying, “No Stairway—denied!” In its September 28 holding, however, the San Francisco-based court revived a copyright infringement lawsuit by the estate of Spirit member Randy Wolfe against Led Zeppelin for the introduction to its iconic “Stairway to Heaven,” remanding the trial court’s decision for procedural errors and faulty jury instructions.
As we wrote in this space in April 2016:
In the Stairway/Taurus dispute, Judge Gary Klausner found that the similarities appear to “transcend this [4-chord] core structure.” Simply put, taken as a whole, the songs appear too similar to chalk it up as mere coincidence. Zeppelin may learn from these past cases and settle with Spirit before this one reaches the jury. If not, it will be interesting to see one of Zeppelin’s most popular songs becomes tarnished by copyright infringement.
In the district court ruling, the jury found that plaintiff Michael Skidmore (as representative of the estate of Randy Wolfe) owned the copyright to “Taurus” (the 1968 Spirit work at the heart of the lawsuit), that defendants had access to “Taurus,” and that the two songs were not substantially similar under the extrinsic test. However, the three-judge panel for the 9th Circuit took issue with the fact that the jury was not allowed to hear the sound recording of “Taurus,” and that the sheet music it was allowed to read was misleading.
Full text of the decision can be found here.
Copyright law protects recorded music in two distinct ways: as a musical work (i.e. composition) and as a sound recording. Because the 1909 Copyright Act governed the scope of the copyright Wolfe obtained in “Taurus,” the district court concluded that the protectable copyright was the musical composition transcribed in the copyrighted sheet music of “Taurus” and not the sound recordings. Therefore—controversially—Wolfe’s representatives would have to rely on the “Taurus” sheet music rather than a sound recording.
However, in the 9th Circuit decision, Judge Paez remanded the case, instructing the district court to allow the jury to hear a sound recording of “Taurus” to show that Jimmy Page and Robert Plant had access to the Spirit work. This will strongly favor Spirit, as observers of the trial noted that the sheet music alone did not make jurors think “Stairway to Heaven” and “Taurus” were similar.
At the district court level, attorneys for Jimmy Page and Robert Plant argued that the distinctive opening guitar passage of “Stairway to Heaven” uses a common progression that has been around for hundreds of years. This argument worked—the district court instructed the jury that de minimis portions of musical works were not copyrightable. Now, attorneys for Led Zeppelin will need to return to the drawing board, as the 9th Circuit found error in that jury instruction.
This case’s continuing saga will be instructive for musicians who must decide whether to fight a lengthy and unpredictable battle in court for vindication, or to cut their losses and settle.
NOTE: Jonathan is the newest member of the WCTG team. He passed the Illinois bar exam and looks forward to being sworn in as an attorney next month.