Led Zeppelin’s “Stairway” Copyright Win Reinstates Creative Freedom to the Music Industry11/10/2020 | By: Francelina M. Perdomo, Esq.| Antoaneta Tarpanova, Esq.| GDB 2020 Fall Newsletter
For the last five years, the music industry has been following a high-profile litigation against the iconic band Led Zeppelin. After a series of recent court decisions threatening the creativity of music innovators, this case reinforces the importance of creative freedom in musical works.
The Estate of Randy Craig Wolf, the frontman of the band Spirit, brought the action in the U.S. District Court for the District of Pennsylvania alleging that the song “Stairway to Heaven” infringed on the copyright of the 1960’s ballad “Taurus”. Following a transfer to the District Court in California, a jury returned a verdict in favor of Led Zeppelin after a star-studded trial with testimony from Jimmy Page and Robert Plant. The California District Court held that “Stairway to Heaven” did not infringe on the copyright of “Taurus”. The Estate filed an appeal.
U.S. Court of Appeals for the Ninth Circuit Decision
In March of this year, the United States Court of Appeals for the Ninth Circuit, en banc, also sided with Led Zeppelin. With the “Stairway” decision, the Ninth Circuit ruled on pivotal issues regarding the role of unprotected prior art elements in music, the applicable test to determine substantial similarities between works of authorship, as well as the manner in which the “deposit copy” defines the scope of the copyright of works created under the Copyright Act of 1909. On October 5th, the United States Supreme Court declined to review the case, leaving the Ninth Circuit’s decision as the controlling precedent on the issues presented in this case.
To prevail in a copyright infringement action, a plaintiff must show the existence of a valid copyright and that the defendant copied and unlawfully appropriated protectable aspects of plaintiff’s artistic work. In this case, Led Zeppelin disputed ownership, access and substantial similarity between “Stairway to Heaven” and “Taurus”. The District Court agreed with Wolfe’s estate on the first two prongs but sided with Led Zeppelin in that the similarities between the songs were common musical elements or building blocks, which are unprotectable elements under copyright law. In copyright infringement cases, the finding of similarities between works of authorship is likely based on an overlap of unprotectable as well as protectable elements. Copyright attorneys and music experts recognize the importance of prior art when evaluating a potential music copyright infringement suit. Musicologists will identify prior art and assist counsel in determining protectable from unprotectable components.
“Inverse Ratio” Rule
The most radical aspect of the Ninth Circuit’s ruling, overturned decades of case law and rejected the controversial “inverse ratio” rule. The rule proposes that the greater the evidence that the alleged infringer had access to the copyrighted work, the easier it is to show the similarities between the work. In establishing its position against the rule, the Circuit Court noted that a high degree of access to a copyrighted work does not justify a lower standard of proof to establish substantial similarity. The Court brought balance to music copyright and held that the “inverse ratio” rule is “at odds with the copyright statute” even though it could still serve as circumstantial evidence of copying.
What Should Jurors Hear In A Music Copyright Trial
The Court also answered the persistent question of what exactly jurors should hear in a music copyright trial. The Court held that because “Taurus” was released under the 1909 Copyright Act, the copyright to the song was, in fact, limited to the “deposit copy” of the written sheet music. This means that allowing the jurors to hear or consider the sound recording of “Taurus” for purposes of establishing substantial similarities with “Stairway to Heaven” would fall outside the scope of the copyright of “Taurus”.
In sum, an “old” copyright cannot extend to recorded elements that are not part of the original registration. Although this part of the ruling should not come as a surprise, it substantially limits the scope of the copyrights of songs composed before 1976.
In conclusion, this case created an opportunity to implement corrective measures to protect the spirit of copyright law and that, in itself, is a win for the industry. The closing arguments of Judge M. Margaret McKeown will forever remind us of how this case took the parties and the Court to “a long climb up the Stairway to Heaven.”