July 14, 2020

Volume X, Number 196

July 14, 2020

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July 13, 2020

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Sometimes Words Have Two Meanings: Court Rules Stairway to Heaven’s Troubled Copyright History

In November of 1971, Led Zeppelin released its iconic song, “Stairway to Heaven.” Since it made its debut, there have been lots of claims about the song: it has been played on the radio 2.8 million times; it is one of the greatest songs of all time; if you play it backward, you will hear a hidden Satanic message; and, perhaps most interestingly, that the famous intro was plagiarized.

Plagiarism claims and a history of litigation

The plagiarism claim linked the intro’s origins to a lesser-known 70s rock band, Spirit, and their song, “Taurus.” Michael Skidmore, a trustee for the estate of Randy California, the guitarist for and composer of Taurus, brought a lawsuit in 2014 alleging that Zeppelin stole the guitar intro for “Stairway” from Spirit. The lawsuit alleges that the two bands toured together in the late 1960s, and therefore, Zeppelin had “access” to Spirit’s songs.

Skidmore’s lawsuit charged Jimmy Page and Robert Plant with copyright infringement, but a jury found them not guilty following a full trial. Skidmore appealed, and in 2018 a Ninth Circuit ordered a new trial after finding that the original trial had “erroneous jury instructions.”

A new trial was held in September of 2019. Plaintiff’s main argument focused on the fact that the original trial did not compare the recorded versions of “Stairway to Heaven” and “Taurus.” To some, this might seem odd, but both “Stairway” and “Taurus” were copyrighted under a 1909 law that only protects sheet music turned into the U.S. Copyright Office. More recent copyright laws extend copyright protection to sound recordings.

Plaintiff protested that judging the songs by their sheet music was misleading because Jimmy Page himself does not read sheet music. “Why are we looking at this artificial analysis that never happened in the real world?” Plaintiff’s attorney said, per the Associated Press. “It’s wrong, it’s artificial, it’s imaginary. What we do know, and what we proved at trial, is that Jimmy Page has five of Spirit’s albums in his record collection.”

Inverse Ratio Rulings

This line of argument ties into another major aspect of the case – the inverse ratio rule. The inverse ratio rule, adopted by the Ninth and Sixth Circuits, makes it easier to prove similarity between two works based on evidence that a copyright infringer had “access” to a copyrighted work. If there is substantial evidence of access, less evidence of similarity needs to be shown.

This rule has been controversial in copyright law. In fact, it was applied to one of the most talked-about copyright infringement cases, the “Blurred Lines” case, which saw Pharrell Williams and Robin Thicke accused by Marvin Gaye’s family for infringing on Gaye’s 1977 “Got To Give It Up.”

In that case, artists Williams and Thicke openly admitted to being inspired by Gaye’s entire body of work and to having had a “high degree of access” to “Got To Give It Up.” According to Thicke, his artistic goal with “Blurred Lines” was to recreate the feeling of Gaye’s work. “I must’ve been channeling that feeling, that late-’70s feeling,” Thicke said on the stand.

Although there was little similarity when comparing the sheet music from both songs, the “feeling” of the song was enough to cause jurors to hand down a verdict in favor of Marvin Gaye’s family. The ruling has been heavily criticized for using overly broad strokes to define copyright parameters and has unnerved artists and copyright holders alike on its impact on pending and future lawsuits.

Zeppelin course correction

In last week’s ruling on “Stairway,” the Ninth Circuit Court quoted from the dissent in the “Blurred Lines” case noting “Authors borrow from predecessors’ works to create new ones, so giving exclusive rights to the first author who incorporated an idea, concept, or common element would frustrate the purpose of the copyright law and curtail the creation of new works.”

Although this may not have been enough to overturn the ruling in “Blurred Lines,” it was sufficient to help Led Zeppelin prevail in the lawsuit against them. “We have never extended copyright protection to just a few notes,” the court commented. “Instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression in a song.”

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume X, Number 85

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About this Author

Gene Markin Attorney Stark & Stark Law Firm
Shareholder

Gene Markin is a Shareholder in Stark & Stark’s Complex Commercial, Intellectual Property, and Cannabis Litigation Groups where he concentrates his practice on complex litigation matters involving copyright protection and infringement, trademark and trade dress infringement and enforcement, trade secret litigation, false advertising, domain name disputes, unfair competition, class actions, fraud and consumer fraud, shareholder and partner disputes, breach of contract, cannabis business disputes, cannabis intellectual property matters, cannabis insurance coverage...

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