Supreme Court Denies Petition to Overturn Ninth Circuit Finding for Zeppelin in Stairway to Heaven
- Zeppelin Stairway to Heaven copyright infringement case ends with S. Court denial of a Petition so devoid of merit that Zeppelin did not even file an answer
- Zeppelin wins in the end because of an error by Skidmore at the trial level
On October 5, 2020, the Supreme Court denied a petition for writ of certiorari filed by Michael Skidmore. Michael Skidmore v. Led Zeppelin et al. S. Ct. No. 20-142. In Zeppelin, 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. For more on Zeppelin, see Katy Perry and Led Zeppelin
Skidmore Failed at Making the Case that Could Have Been Theirs To Win
It is hornbook law that copyright protection will be extended to “a combination of unprotectable elements — only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Zeppelin, Ninth Circuit Decision at 45. Because Skidmore failed at trial to argue how these musical components related to each other to create the overall design, pattern, or synthesis, the Ninth Circuit found there was no error of the lower court on which the Ninth Circuit could reverse based on selection and arrangement. Id. at 39, 43.
In an attempt to try to get around this failure, Skidmore argued that the Ninth Circuit decision altered the precedent regarding the extrinsic test – to wit, the objective comparison of protected areas of a work that involves “breaking the works down into their constituent elements, and comparing those elements” to determine whether the copyrighted work is substantially similar to the allegedly infringing work. The Supreme Court would hear none of it since the “selection and arrangement” of the unprotectable elements was never considered by the lower court since Skidmore never made that argument.
Skidmore also tried to have the Supreme Court overturn the well-established precedent that the copyright in the sheet music deposited with the Copyright Office to secure the registration did not extend to the sound recording. 17 U.S.C. § 301(c). Id, at 18. The Court’s denial of the petition confirms that it does not, as the Ninth Circuit held, since “sound recordings did not become subject to copyright protection until 1972, and then only for the sound recordings fixed on or after February 15, 1972. 17 U.S.C. § 301(c).” Id. at 18.
The petition before the Supreme Court was so devoid of merit that Zeppelin did not even file an answer. See Waiver of right of respondent James Patrick Page, Robert Anthony Plant, John Paul Jones, Warner Chappell Music, Inc., Atlantic Recording Corporation, Rhino Entertainment Company, Super Hype Publishing, Inc., and Warner Music Group Corp. to respond filed.
In a short two months, not long after the issues were joined, the Supreme Court denied the petition.
Cases Rise or Fall on the Lawyering
It has been said that the fate of a case will rise or fall depending on the lawyering. Zeppelin’s recent victory at the Supreme Court illustrates this point. The failure of Skidmore to argue at trial how the musical components related to each other to create the overall design, pattern, or synthesis resulted in a big win for Zeppelin (Id. at 39, 43). At the end of the day, it was a blunder at the trial level that predestined the Zeppelin win.