Randy California's estate files another petition with the US Supreme Court over Led Zeppelin's infringement case

By Emmanuel Legrand 

The estate of the late Randy Craig (a.k.a. Randy California, songwriter and guitarist for the band Spirit) has filed another petition before the US Supreme Court asking for a rehearing of its initial petition for writ of certiorari filed in August 2020, which had been denied by the Supreme judges. 

  Michael Skidmore, acting as Trustee for the Randy Craig Wolfe Trust, and his lawyer Alfred J. Fluehr, of law firm Francis Alexander, want the Supreme Court review a March judgment of the Court of Appeals for the Ninth Circuit, which ruled that British band Led Zeppelin did not infringe the copyright of California's instrumental 'Taurus' with their song 'Stairway To Heaven'.

  Fluehr's initial petition was asking the Supreme Court whether a deposit with the US Copyright Office should be the sole source defining a copyright and if other evidence such as a recording could also define a copyright (the Ninth Circuit declined introducing the recording as evidence during the initial trial). The petition for writ of certiorari was denied by the Supreme Court in October.

License to steal

  In his new petition, Skidmore wants the Supreme Court the review the foundation of what led the Ninth Circuit en banc to make an opinion, which according to the petition "heralds the 'death of music copyright', just as happened to literary copyright before it."

  Reads the petition: "Copyright law is meant to protect the Creatives who create, not the Industry who takes. This is not a hyperbolic warning, but a fact unless this Court grants review. The reformulation of the copyright test by the Ninth Circuit essentially gives the unscrupulous a license to steal and commit plagiarism."

  The petition describes the Ninth Circuit appeals trial as a "shady rehearing process" and the petitioner wants to bring "new information" to the Court’s attention, stating that the process was "influenced by filings from music industry figures which were, at a minimum, highly misleading." The petition mentions an amicus brief submitted on behalf of “123 Songwriters, Composers, Musicians, and Producers.”

A misleading brief

  The Petition claims that the description of the brief was "misleadingly" in that "great pains were taken by the amici to (falsely) portray themselves as unaffiliated artists who were friends of the court and dedicated to getting the law right."

  Petitioner says the brief "advanced the same propositions as an amicus brief submitted by the Recording Industry Association of American" (sic). It adds: "The songwriter amicus brief was in many respects adopted by the en banc court," reads the petition, but "contrary to the impression the Ninth Circuit had that 123 songwriters got together and submitted a brief they thought would uphold and advance the principles of copyright law, these are in fact some of the wealthiest musicians, music  executives, and attorneys on the planet."

  For this reason, "these industry figures do not have the foundational principles of copyright law in mind, nor did they individually decide to participate as amici; their names were submitted by the recording industry in an effort to convince the Hollywood Circuit that there was broad support for their copyright poison pills."

Not friends of the court

  The petition then lists the alleged wealth of some of the signatories, including that of Swedish producer Max Martin ($300 million), songwriter and performer Julian Lennon ($200m), Nile Rodgers ($70m), among others.

  "None of the songwriters or industry executives disclosed that they and their entities were defendants in copyright lawsuits and were actually interested parties who would directly benefit from the en banc opinion. They were not friends of the court," reads the petition.

  The petition concludes: "The Ninth Circuit’s en banc opinion will throw copyright law and analysis into chaos across the county, as different courts will begin to use wildly differing standards. Litigants will no longer have a clear understanding what originality or protectability mean. This is particularly problematic given that the Copyright Act imposes financial penalties if a suit is unsuccessful. Thus, creators are left in the dark about whether they should bring suit — that  is, until this Court addresses these issues."