The forests are echoing with laughter today, as Led Zeppelin have scored another legal victory in the long-running copyright fight around their classic hit “Stairway to Heaven”. This one looks could be the final nail in the coffin over the claim that the song rips off Spirit’s “Taurus”, as the Ninth Circuit Court of Appeals has reversed its own earlier decision, leaving in place a 2016 jury ruling that there was no copyright infringement.
Michael Skidmore, trustee for the late “Taurus” songwriter Randy Wolfe, first filed suit against Led Zeppelin in 2014. Two years later, a jury ruled in favor of the “Stairway to Heaven” songwriters, declaring there was no plagiarism at foot. However, a critical point of the case was that neither Led Zeppelin’s nor Spirit’s songs were actually played during the trial; the judge had ruled that since “Taurus” was written in 1967, only the sheet music was protected under the copyright laws that existed at the time.
This is the fulcrum on which the plaintiff’s appeal pivoted. Skidmore argued that the scope of protection for unpublished works of music should reach beyond what’s actually deposited at the Copyright Office (ie, sheet music prior to 1971, and audio recordings afterwards), and as such, recordings of both songs should have been played during the trial.
Ultimately, the Ninth Circuit determined that while the material deposited at the Copyright Office determines what’s protected, the plaintiff could have used recordings of the songs to demonstrate Led Zeppelin had access to “Taurus” prior to making “Stairway to Heaven”.
Both Skidmore and Led Zeppelin disagreed with the Ninth Circuit’s rational for differing reasons, and requested a rehearing. The plaintiff asked for a reconsideration over the scope of deposited works, while the defense argued a new trial would produce the same result. Last summer, the court agreed to rehear the case, which led finally to today’s 54-page decision in Led Zeppelin’s favor. No word on if the Trump DOJ’s friend of the court” briefing filed in August had any impact on the decision.
In addition to raising questions over whether audio should be played before a jury in similar legal cases, the ruling finds the Ninth Circuit essentially dismissing the so-called “inverse ratio rule,” which states that the bar for proving substantial similarity in copyright cases is lower for works with higher degrees of access. By declining to adopt the rule, the Ninth Circuit joins the Second, Fifth, Seventh and Eleventh, with only the Sixth Circuit endorsing it.
According to today’s opinion (via The Hollywood Reporter), “As a practical matter, the concept of ‘access’ is increasingly diluted in our digitally interconnected world.” In other words, because so much material is so widely accessible thanks to the likes of YouTube, Netflix, and Spotify, the idea that “access” can “prove substantial similarity” is moot.
As for Skidmore’s argument as it relates to “deposit copy,” the opinion noted,
“Although Skidmore offers a host of reasons why adherence to the statute complicates proof in copyright cases, these arguments cannot overcome the statutory requirements… Skidmore also complains that restricting protection to the deposit copy disadvantages musicians who do not read music because it can be time consuming and expensive to make an accurate deposit copy. Apparently, that was not a problem here, as Wolfe’s work was transcribed for the sheet music deposit. Digital transcription and other technological advances undercut this argument, not to mention that for decades now, sound recordings have been accepted as the deposit copy. Finally, Skidmore offers conjecture about what might happen if a deposit copy were lost or destroyed. We need not play this ‘what if’ guessing game because the statute is clear and unambiguous.”
In a statement responding to the Ninth Circuit’s decision, Skidmore’s attorney, Francis Malofiy said he was “disappointed” and would not rule out further legal actions. By the time it’s all said and done, the case could end up being heard before the Supreme Court.
“The way we look at it is this is a big win for the multi-billion corporate music industry against the creator and that’s the reality no matter which way you cut it. They won on a technicality and not on the merit itself. It’s disappointing the 9th circuit which ruled in our favor would then come back and dispose of the very things that were at issue and that allowed Zeppelin to win on a technicality. This is by no means finished and we don’t drop our sword over here. We could ask for a reconsideration of the whole bench of the 9th Circuit or we could go to the Supreme Court.”
Compare “Stairway to Heaven” and “Taurus” for yourself below.