Led Zeppelin Prevails on Appeal in Copyright Infringement Action
The latest decision has issued in a long-running dispute involving one of the most iconic songs in Rock music history, Led Zeppelin’s Stairway to Heaven. In 2014, Led Zeppelin and legendary songwriters Robert Plant and Jimmy Page (“Led Zeppelin”) were sued for copyright infringement on grounds that the opening guitar riff of Stairway to Heaven was copied from the instrumental song Taurus by the band Spirit. In 2016, a jury ruled in favor of Led Zeppelin, and an appeal to the Court of Appeals for the Ninth Circuit ensued.
In order to prevail on a claim of copyright infringement, a plaintiff must establish: (i) ownership of a valid copyright in the allegedly infringed work; and (ii) copying by the alleged infringer. A plaintiff may establish copying by showing that: (i) the alleged infringer had access to the copyrighted work; and (ii) the copyrighted work and the allegedly infringing work are “substantially similar.” Practically speaking, works generally must be very similar in order to be deemed “substantially similar.”
In this case, plaintiff’s claims are not based on the entire Taurus composition, but rather, an eight-measure passage at the beginning. Both sides presented expert musicologists to opine on the similarities and differences between the parties’ respective works. Plaintiff’s expert cited five musical elements common to both compositions, including three two-note sequences and a similar pitch collection. Led Zeppelin’s expert argued, however, that the similarity in the two-note sequences was not musically significant because they were preceded and followed by different notes to form distinct melodies (contending that plaintiff’s argument is akin to taking the position that “crab” and “absent” are similar words because they both share the common letter pair “ab”).
Ultimately, the jury found that plaintiff owns a valid copyright in Taurus and Led Zeppelin had access. The band Spirit had played some of the same venues as Led Zeppelin in the late 1960’s, and Led Zeppelin guitarist Jimmy Page admitted that he had a copy of Spirit’s album on which Taurus appeared in his collection (although he denied knowledge of the song). Stairway to Heaven was released in 1971, while the copyright in Taurus was registered in 1967. The jury found, however, that the works are not substantially similar.
One issue on appeal was the trial court’s decision not to allow plaintiff to play sound recordings of Taurus and Stairway to Heaven to the jury. Instead, the parties’ experts compared sheet music for the two compositions. The trial court concluded that Taurus is protected under the 1909 Copyright Act, which only protects sheet music and not sound recordings. Sound recordings were subsequently protected under the 1976 Copyright Act, but this did not apply retroactively to Taurus. The Ninth Circuit affirmed the trial court’s decision not to play the relevant sound recordings to the jury on this basis. As an aside, we note that a cursory listen to the sound recordings of the two compositions reveals more similarities than we would have expected.
Another issue on appeal was the following jury instruction:
“Copyright only protects the author’s original expression in a work and does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.”
In affirming the propriety of this instruction, the Ninth Circuit noted:
“We have never extended copyright protection to just a few notes. Instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression in a song. . . In the context of a sound recording copyright, we have also concluded that taking six seconds of the plaintiff’s four-and-a-half-minute sound recording – spanning three notes – is de minimis, inactionable copying.”
The appellate court also abrogated the “inverse ratio rule,” long-standing precedent in the Ninth Circuit dictating that if a high degree of access to the copyrighted work is proven, the less similar the allegedly infringing work must be. Plaintiff appealed, in part, on grounds that the jury did not receive the appropriate “inverse ratio rule” instruction. In abrogating the rule, the Ninth Circuit noted that in the digital age access to works is arguably infinite, and the rule unfairly advantages parties whose works are most accessible.
As reported by Rolling Stone, plaintiff’s attorney did not concur:
“What you have here is a big win for the multi-billion dollar industry against the creatives. I love Led Zeppelin . . . but they’re the greatest art thieves of all time and they got away with it again today. They won on a technicality. But they absolutely stole that piece of work.”
The plaintiff, of course, may now file a writ of certiorari to the U.S. Supreme Court. We will continue to monitor this case and report on further developments.
