No Stairway to Heaven for Led Zeppelin in Taurus Copyright Infringement Lawsuit
Non-Preemptive Substantial Similarity Threatens to Bring Down Led Zeppelin’s Stairway
- There is a low bar for originality in copyright.
- Copyright extends to parts of a work created (1) independently; i.e., not copied from another’s work and (2) which contain minimal creativity.
- Most basic musical elements are not copyrightable.
- But while “a single musical note would be too small a unit to attract copyright protection,” an arrangement of a limited number of notes can garner copyright protection.
- Be sure that instructions to the jury make this point clear: Look beyond the copyright-ineligible “building block” layers of expressive sound to determine whether they have been creatively arranged to transform them into a copyright-eligible application. Infringement lies where there is substantial similarity of the accused artistic work to that creative arrangement.
On March 10, 2015, a California federal jury found that Robin Thicke and Pharrell Williams copied the Marvin Gaye 1977 classic song “Got to Give It Up” in their 2013 pop hit “Blurred Lines” and awarded $4 million in damages and $3.38 million in lost revenue. See “Blurred Lines” Copyright Infringement, Marvin Gaye, Patent Preemption and a New Frontier in Copyright Litigation
At the same time, another high profile musical industry case was winding its way through the same California federal court system. The case was Michael Skidmore v. Led Zeppelin et al. Michael Skidmore sued the rock group Led Zeppelin for copyright infringement on a claim that Led Zeppelin copied key portions of its hit song “Stairway to Heaven” from the song “Taurus,” which was written by Spirit band member Randy Wolfe. Michael Skidmore sued as trustee for the Randy Craig Wolfe Trust.
Unlike in “Blurred Lines,” where the jury returned a verdict of infringement in favor of the copyright holder, on June 23, 2016, the jury in “Stairway to Heaven” returned a verdict in favor of Defendants. Skidmore appealed, raising a host of alleged trial errors and challenging the district court’s determination that for unpublished works under the Copyright Act of 1909, the scope of the copyright is defined by the deposit copy.
On September 28, 2018, the Court of Appeals for the Ninth Circuit held that several of the district court’s jury instructions were erroneous and prejudicial. The 9th Circuit vacated the amended judgment in part and remanded for a new trial.
As a matter of procedural note, this case would not have been possible but for the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967–68 (2014). The song “Stairway to Heaven” was released in 1971 and the passing of many years of playtime without any filing of copyright infringement charges appeared to have immunized the song against infringement charges under the doctrine of latches. That changed when the Supreme Court decided Petrella which clarified that laches is not a defense where copyright infringement is ongoing.
As a matter of first substantive law impression, the Ninth Circuit concluded that the deposit copy defines the scope of a copyrighted work for unpublished musical works under the 1909 Act. The copyright for Taurus was filed in December 1967 under the Copyright Act of 1909 and listed Randy Wolfe as the author. As part of the copyright registration packet, “Taurus” was transcribed into sheet music that was deposited with the Copyright Office.
Skidmore had argued that under the 1909 Act, the deposit copy was purely archival in nature and that the scope of the copyright was broader. Op, 31. In reaching its conclusion, the Court traced the path of the copyright laws from the Copyright Act of 1831 which extended copyright protection to the sheet music of musical compositions for the first time. To the Copyright Act of 1909 which set aside the requirement for infringement of duplication of the sheet music itself to allow for infringement by “any arrangement or setting of the musical composition” including a piano player roll piano which allowed songs to be recreated on a piano and found not to infringe by the Supreme Court in White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 10–11 (1908). The Copyright Act of 1909 provided for state common law copyright protection from the moment of creation until publication or federal registration and submission of a deposit copy. To the Copyright Act of 1972 which extended copyright protection to sound recordings as separate copyrightable works from musical compositions.
The critical intersection of “Blurred Lines” and “Stairway to Heaven” copyright infringement cases is that copyright protection exists only in layers of sounds which are creatively arranged. Just as 35 U.S.C. §101 in the patent laws prohibit patenting the building blocks of invention such as “laws of nature, natural phenomena, and abstract ideas”, so too 17 U.S.C. §102 in the copyright laws prohibit copyrighting building blocks of expression such as “ideas, concepts, principles”. “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. §102(b)
The Court explained what are “building blocks” of expression in layer(s) of sound that are not eligible for copyright:
- “Most basic musical elements are not copyrightable.” Op. 20 citing Smith v. Jackson, 84 F.3d 1213, 1216 n.3 (9th Cir. 1996) (explaining that “common or trite” musical elements are not protected); Satava, 323 F.3d at 811 (holding that expressions that are common to a subject matter or medium are not protectable); Swirsky, 376 F.3d at 851 (acknowledging that a single musical note lacks copyright protection).
The Court went on to explain that creative arrangements of “building blocks” of expression in layer(s) of sound are eligible for copyright:
- There is a low bar for originality in copyright.” Op. 20 citing Swirsky, 376 F.3d at 851 (“[O]riginality means little more than a prohibition of actual copying.”)
- “Copyright extends to parts of a work created (1) independently, i.e., not copied from another’s work and (2) which contain minimal creativity.” Op. 20 citing Feist Publ’ns, 499 U.S. at 348.
- But while “a single musical note would be too small a unit to attract copyright protection . . . an arrangement of a limited number of notes can garner copyright protection.” Op. 20 citing Id. (conclusion there that seven notes could be sufficient to garner copyright protection. See Swirsky, 376 F.3d at 852.)
Hence, a single note does not entitle layer(s) of sound to copyright protection. Nor would the ordering of notes in an arrangement known in the artistic community such as was arguably the case in Blurred Lines. But arranging notes in a creative fashion as was arguably the case in Taurus may well be deserving of copyright protection.
These guiding principles serve as important take-aways not only for copyright litigators, but for every copyright practitioner. Another is the importance of jury instructions and in copyright cases to make especially clear to the jury that the question presented is this. Look beyond the copyright-ineligible “building block” layers of expressive sound to determine whether they have been creatively arranged to transform them into a copyright-eligible application. Infringement lies where there is substantial similarity of the accused artistic work to that creative arrangement. This was not done and is the failure of the lower court in this case.
Specifically, the Court found that error along these lines in Jury Instruction 10 was not harmless “as it undercut testimony by Skidmore’s expert that Led Zeppelin copied a chromatic scale that had been used in an original manner.” Op. 21. Jury instruction 10 provided that:
Jury Instruction 10
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.
Also, there can be no copyright infringement without actual copying. If two people independently create two works, no matter how similar, there is no copyright infringement unless the second person copied the first. (emphasis added)
The court also found error along these lines in Jury Instruction 20 which provided that:
Jury Instruction 20
An original work may include or incorporate elements taken from prior works or works from the public domain. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, the original part of the plaintiff’s work is limited to the part created:
1. independently by the work’s author, that is, the author did not copy it from another work; and
2. by use of at least some minimal creativity. (emphasis added)
The court found jury instruction 20 misleading since it “suggests that public domain elements such as basic musical structures are not copyrightable even when they are arranged or modified in a creative, original way.” Op. 21. As the court explained, “Nowhere did the jury instructions include any statements clarifying that the selection and arrangement of public domain elements could be considered original” and it furthered “an impression that public domain elements are not protected by copyright in any circumstances.” Op. 22. The court found that “This is in tension with the principle that an original element of a work need not be new; rather, it need only be created independently and arranged in a creative way. See Feist Publ’ns, 499 U.S. at 345, 349” Id.
In short, these two jury instructions prevented the jury from considering, once the non-protected “building block” layers of expressive sound were discounted from the Taurus music as not copyright-eligible, whether the layers of expressive sound in “Stairway to Heaven” were substantially similar to the creatively arranged layers of expressive sound in the Taurus music that were deserving of copyright protection. Because the district court erred both in the formulation of the originality jury instructions and in withholding a selection and arrangement instruction, the court vacated the judgment and remanded for a new trial.
Both “Blurred Lines” and “Stairway to Heaven” cases also call into question the lawyering performed by the non-prevailing party. In“Blurred Lines,” there appeared to be little argument that “building block” rhythm and vibe arrangements of notes well known in the music industry may have been pre-existing “building blocks” of expression that should not have been relied on by the jury in determining the substantial similarity of the two works. In “Stairway to Heaven” in contrast, jury instructions framed by the lower court based on input from the lawyers suggested that no creatively arranged layers of pre-existing expressive sound is ever copyrightable which is not the law.
At the end of the day, pre-existing “building block” expressive sounds are copyright-eligible if they are arranged in a creative way as appears to be the case in Taurus. While it remains to be seen how the layers of sound the jury will hear from playing the Taurus sheet music deposited with the Copyright Office will sound, if they sound similar to the following recording
Then Led Zeppelin may arguably have a tough go of it in arguing they are not substantially the same under the extrinsic and intrinsic tests used to determine whether an allegedly infringing work is substantially similar. Nor can they be confident in defending on the basis of independent creation, since both Jimmy Page and Robert Plant had access to the Taurus recording as evidenced by testimony that Spirit had played “Taurus” the night both bands performed in Denver, Robert Plant attended a February 1970 Spirit performance and Jimmy Page currently owns a copy of the Spirit album with the Taurus recording. Op. 6-7.
We will see where the Stairway to Heaven leads after proper jury instructions are given by the lower court on retrial.