The most famous riff of intellectual property: “Stairway to heaven”

Return to News — Thursday 21 May — 2020 by Mª Elena Juan Serna
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On March 9, the United States Court of Appeals for The Ninth Circuit found that Led Zeppelin did not commit copyright infringement in “Stairway to Heaven” for which the British rock band was allegedly accused, thus affirming the District Court’s judgement.

The subject matter spins around the opening notes of the song which has been considered as the best rock song of all times: “Stairway to Heaven”.

The originality of this hit’s introductory riff was put to the test as being a copy of the instrumental song Taurus composed by Randy Wolfe (aka Randy California) in 1968 and performed by his rock band Spirit.

Actually, “at first hearing”, there is a definite resemblance between both melodies. However, the fact that a subsequent work has similarities or reminds to a former, does not entail per se a Copyright infringement.

The suit was filed in 2014 on behalf of Michael Skidmore, trustee of Wolfe’s es. On claimant’s demand the case was heard in a Jury’s trial which is to a certain extent quite unbelievable from European procedural’s perspective. But this is America!

In 2016, the District Court failed in favor of Lez Zeppelin considering the Jury’s verdict which did not found “substantial similarity” of the works at stake.

Further to see rejected its legal claims, the plaintiff appealed the decision.

Thus, the Court of Appeals for the Ninth Circuit has served an “en banc” decision – all Judges have heard and have issued their opinion on the matter. The decision revolved around the contentious issued raised in the appealing, among which:

(1) The scope of protection of Taurus and the interplay between two Copyright Laws. Taurus was released in 1968 in Spirit’s debut record performed around America during their first Live Tour. This very same year, the composition of Taurus – consisting of one-page deposit copy – was registered with the US Copyright Office, yet it remained unpublished. Controversially, one of the greatest problematics was to determine which was the scope of protection of the work. Indeed, the instrumental song was released in period of interplay between the Copyright Act of 1909 and the Copyright Act 1976.

The District Court found that in this case the Copyright Act of 1909 was applicable, and the decision was reinstated by the Court of Appeals. Accordingly, a music work under the Act of 1909 is protected by its musical composition rather than the sound recordings protected by the Act of 1976. Therefore, the scope of protection of Taurus is defined by the one sheet deposit copy – the song’s sheet – exactly as lodge with the Copyright Office.

(2) Standards of Copyright infringement and the alleged “error” of the Judge to rejecting the play of Taurus’ song recording. The Court of Appeals provides with an overview of the two requirements to prove a Copyright infringement: (i) to own a valid Copyright and (ii) the unlawful copy of the work. In respect to the second element the “unlawful copy”, the party which brings the accusation must evidence:

a. “Access” to the work by the party which has purportedly copy it. This can be circumstantially proven like for instance, in this case from the fact that Led Zeppelin was the opening band in some of Spirit’s concerts in their 1968 U.S. tour, in which they promoted and diffuse their track Taurus. Or by the fact that Jimmy Page – Zeppelin’s iconic guitarist – admitted during the trial having Spirit’s CD featuring Taurus but declared to ignore this particular track. No direct evidences were brought to prove striking similarity. All in all, the Jury found that defendants had access to Taurus’ work.

b. “Unlawful appropriation” of the original work’s original elements meaning that both works share “substantial similarity”. To this effect, an “intrinsic-extrinsic” test must be satisfied. The extrinsic similarity test compares the objective similarities of specific expressive elements in the two Works. This test is normally carried out by expert musicologists which compare the music sheets or sound recordings from a technical perspective. The intrinsic test seeks for similarity of expression from the standpoint of the ordinary reasonable observer.

The Jury could not assess the intrinsic similarity between the works because the Judge admitted the defendants in limine motion and rejected the plaintiff’s request to play the Taurus’ sound recording before the Jury. The Court of Appeals agreed with the District Judge decision to let aside the plaintiff’s request since Taurus scope of protection was determined by the sheet deposit rather than the subsequent sound recordings so that, playing the song would be “too prejudicial for the Jury”. As per the extrinsic similarity consisting of the sheet’s comparison conducted by the experts, the Jury found that there was no substantial similarity between the works.

(3) Error in the “Jury’s instructions”. The Court must address plaintiff’s asserted errors in the Jury’s instruction which will be summarize, although they deserve further enhancement, as follows:

a. Failure to give an “inverso ratio rule”. The application of this rule entails for the case at stake a lower standard of proof of substantial similarity when a high degree of access have been shown.

The most unexpected shift of the judgement. The Court abrogated the “inverso ratio rule” and overruled circuit precedents to the contrary. In accordance with the Court’s arguments, the inverso ratio rule is not part of the copyright statute so its application creates uncertainty for the parties and the Courts. In support of its decision, the Court states that digital era has diluted the concept of access which still has meaning for proving copyright infringement but discourages the application of the inverso ratio rule.

b. The originality instructions and the omission of a selection and arrangement instruction. In the judgement the questions are addressed separately but we will condense the content in this section. In accordance with Instruction No. 16 of district court “descending chromatic scale, arpeggios, or short sequences of three notes are not protected by copyright”, meaning that these elements must be considered as building blocks of musical creation and composition and must remain in public domain. The Court of Appeals has reaffirmed the instruction given by the district judge. In the case at stake, both works were composed by a similar descending chromatic scale but with definite differences. Both musicologists, from the plaintiff side and the defendant, admitted that descending chromatic scales are commonly used in music and are building blocks.

Finally, on the omission of an instruction that Copyright is deemed to protect a certain selection and arrangement of music notes and combinations, the Court ruled the district court did not commit “plain error”. On the one hand because the omission was not properly objected by the plaintiff and, on the other hand because even by providing the said instruction, the ruling will still remain the same.

In conclusion, the case’s special circumstances have been crucial to determine the final decision which means that it is difficult to assess the practical extent of this last Court of Appel’s ruling.

However, the abrogation of the “ratio inverso rule” and the statements over the dilution of the concept of “access” triggered by global digitalization, entailed a real “twist” to the Circuit’s jurisprudence which will surely impinge the ongoing or next proceedings in the matter.

Oh it makes us wonder!

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