Led Zeppelin Victorious at the Ninth Circuit

The epic copyright infringement lawsuit against Led Zeppelin over the song "Stairway to Heaven" has reached another milestone —€“ this time in favor of the legendary band. This case has been more like a long and winding road than a stairway.

As background, Led Zeppelin was sued in 2016 by a representative of the Estate of Randy Wolfe (p/k/a Randy California) of the band Spirit. The claim was that the introduction to "Stairway to Heaven" (you all know it) was substantially similar to — and thus an infringement of — the composition "Taurus" by the band Spirit (note that the statute of limitations was not an issue because the alleged infringement was ongoing).

For those of you who are curious, you can find comparisons and discussions of the two songs online (such as this one).

A key issue was that Spirit registered with the Copyright Office only the sheet music of "Taurus" — not the sound recording. This was because at the time (1967), the 1909 Copyright Act was in effect, which did not provide any protection for sound recordings (this changed in 1972). The trial court judge held that as a result, the plaintiff could not play "Taurus" for the jury, but instead could only submit the sheet music to them (although a guitarist did then perform from the sheet music for the jury).

The jury returned a verdict of no infringement in 2016. The plaintiff appealed to the Ninth Circuit in 2017, arguing, in part, that not allowing the jury to hear the sound recording of "Taurus" meant that they were forced to make an "artificial comparison" between an "inaccurate version" of "Taurus" that, plaintiff claimed, was more dissimilar to "Stairway to Heaven" than the version that was recorded. In 2018, a three-member panel of the Ninth Circuit ordered a new trial —€“ ruling that the trial judge "undermined" the plaintiff's claim by, in part, not instructing the jury that the selection and arrangement of otherwise uncopyrightable elements could then be copyrightable. And although the Ninth Circuit panel held that the scope of the plaintiff's copyright protection was defined by the registered sheet music, it was nonetheless an error to not allow the recording of "Taurus" to be played for the jury for the purpose of demonstrating access. The jury found that both Jimmy Page and Robert Plant had access, but because the panel was ordering a new trial, it held that the new jury should be allowed to observe Jimmy Page as he listened to the sound recording in order to assess his demeanor on the issue of access.

BUT, before a new trial could take place, the Ninth Circuit Court of Appeals agreed to rehear the case en banc (an unusual event). Both sides raised issues — the plaintiff wanted the court to rule that the copyright in the song was not limited to the sheet music but could extend to the sound recording, and Led Zeppelin wanted the jury verdict reinstated.

AND THEN . . . the Department of Justice entered the fray. In August 2019, the DOJ submitted an amicus brief urging the Ninth Circuit to reinstate the 2016 jury verdict. The DOJ argued that under the 1909 Copyright Act, the scope of a copyright was defined by the registered sheet music, and the copied portion of the composition was "subject, at most, to a thin copyright, which was not infringed." The DOJ noted that once the "performance elements" were removed, "the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale." Those elements themselves are not protectable, so the only copyright was in the selection and arrangement of them — which was so "thin" as to extend only to "virtually identical copying" (which was not present).

On March 9, 2020, Ninth Circuit sitting en banc reinstated the 2016 jury verdict and overturned the 2018 ruling by the three Ninth Circuit judges. The en banc panel held that:

• The scope of copyright under the 1909 Act was defined by and limited to the copy of the work as it was registered, and thus, it was proper for the judge to exclude the playing of the recording of "Taurus" for the jury on the issue of substantial similarity.
• There would have been "very little . . . probative value" in letting the jury observe Jimmy Page listening to the sound recording to evaluate the issue of access. Regardless, the issue was moot, as the jury did, in fact, find access.
• The "inverse ratio rule" — a rule that the greater the evidence of access, the less similarity is required to establish infringement —€“ defies logic. The court abrogated this longstanding doctrine in the Ninth Circuit and overruled its prior rulings to the contrary.

The court also upheld as proper (i) a jury instruction that identified "descending chromatic scales, arpeggios or short sequences" as unprotectable; and (ii) a jury instruction that acknowledged that an original work can contain unprotectable elements from the public domain, but that the elements from prior works are not protected.

The plaintiff also argued that the jury should have been instructed that the selection and arrangement of unprotectable elements can itself be protectable — which is true —€“ but the plaintiff did not preserve this objection at trial. Thus the omission was reviewed for plain error, which was not found: "A selection and arrangement instruction would not have convinced a jury that 'Stairway to Heaven' was substantially similar to the deposit copy of 'Taurus.'"

Affirming the judgment of non-infringement, the panel said it best: it has indeed "been a long climb up the ‘Stairway to Heaven’" for Led Zeppelin.

Author: Jenifer deWolf Paine