By Emmanuel Legrand
The Ninth Circuit in San Francisco has handed Led Zeppelin a victory in its appeal to the 'Stairway to Heaven' infringement case. The British rock band was accused by the heir of the late Randy Wolfe from the band Spirit of having copied the instrumental 'Taurus'.
The "en banc" court affirmed the ruling by the United States District Court for the Central District of California which found the British composers of the 1971 song 'Stairway to Heaven' – Jimmy Page and Robert Plant – not guilty of copying the instrumental 'Taurus', written by Wolfe, known as Randy California, and recorded in 1968 by Spirit.
The executor of the Wolfe estate, Michael Skidmore, represented by lawyer Francis Malofiy, claimed in a 2014 lawsuit that the introduction of 'Stairway' was a a copy of 'Taurus'. In 2016, a jury found that Page and Plant were not guilty of infringement, after a trial that saw the Plaintiff's lawyer argue that Led Zeppelin, which had been touring with Spirit in 1969, were aware of the song, while Defendant's lawyers told the court that the two songs shared a chord progression and a descending chromatic scale which could also be found in compositions from 300 years before.
Declining requests to play recordings
The district court also ruled that under the 1909 Copyright Act, the scope of the copyright was circumscribed by the musical composition transcribed in the 'Taurus' deposit copy. In 2018, an appeals court ordered a new trial, on the grounds that the jury had not received proper instructions, in particular that they should have been entitled to listen to recordings of the songs, and not base their decision solely on the merit of the composition registered in 1967 by Wolfe with the Copyright Office.
Following appeals filed by both parties, the United States Court of Appeals for the Ninth Circuit in San Francisco took the decision to rehear the case before a full panel of 11 judges. In its ruling, the "en banc" Ninth Circuit stated: “The scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of Taurus consisted of only one page of music. Accordingly, it was not error for the district court to decline plaintiff’s request to play sound recordings of the Taurus performance that contained further embellishments or to admit the recordings on the issue of substantial similarity.”
It added: “This copyright case was carefully considered by the district court and the jury. Because the 1909 Copyright Act did not offer protection for sound recordings, Skidmore’s one-page deposit copy defined the scope of the copyright at issue. In line with this holding, the district court did not err in limiting the substantial similarity analysis to the deposit copy or the scope of the testimony on access to 'Taurus'.”
Rejecting the inverse ratio rule
The appeals court affirmed the district court’s challenged jury instructions and also took the opportunity “to reject the inverse ratio rule, under which we have permitted a lower standard of proof of substantial similarity where there is a high degree of access. This formulation is at odds with the copyright statute and we overrule our cases to the contrary.”
The “inverse ratio rule” has been a staple in copyright infringement cases in the Ninth Circuit for years. According to the Chicago Tribune, the “inverse ratio rule” – which had not been adopted in other circuits – “held that the more access was shown, the less similarity was required to establish infringement” which went in the way of Plaintiffs since to prove copyright infringement, they must show that the alleged infringer had access to the plaintiff's work, and that the two works are “substantially similar.”
In overturning the rule, noted the Tribune, “the appeals court noted that the idea of 'access' has become diluted in the digital age, as millions of works are readily available on Netflix, YouTube, and Spotify.”
“The court got it wrong,” said Malofiy in an interview with The New York Times. “Led Zeppelin can be happy they won on a technicality, but that does not mean they won on the merits. Anyone who has heard the two songs at issue knows it is a blatant ripoff.”
Too many nuisance copyright claims
Two previous copyright infringement cases had sent shock-waves throughout the songwriting and producing community: one filed by the Marvin Gaye Estate against Robin Thicke and Pharrell Williams, which found the latter guilty of copying Gaye's 1973 song 'Got To Give It Up' with 'Blurred Lines'; and the one against Kary Perry, in which a jury found that the writers of Perry 2013 track 'Dark Horse' had infringed a 2008 song called 'Joyful Noise' written by Christian hip-hop artist Flame.
Los Angeles-based copyright lawyer Charley Londoño of Law Office of J. Charley Londoño, considers that the 'Stairway to Heaven' case "was decided correctly, unlike the Thicke/Williams/Gaye case and Katy Perry case."
Speaking to Creative Industries Newsletter, he elaborated: "I am glad the Ninth Circuit judges thought the deposit copy was complete and that the judges dismissed the attorney’s argument about insufficient jury instructions and 'selection and arrangement'." He also quipped that "when you have a baroque period piece that sounds similar to 'Stairway' and 'Taurus', that’s good for Zeppelin."
He added: "Personally, I think there’s too many people bringing nuisance copyright claims. 'Blurred Lines' and 'Dark Horse' cases don’t help either, it fans the flames and opens up the floodgates for these types of nuisance claims. Copyright is complex and very difficult for juries, even judges, to understand."