October 23, 2018 Musicology No Comments

Led Zeppelin vs Spirit/Skidmore v.1: discarded by the Ninth Circuit. And it’s a mixed bag at best.

It’s been about a year since a jury decided that Led Zeppelin’s Stairway To Heaven did not infringe upon the copyright of Taurus, by the band Spirit. That jury ruled that although Led Zeppelin had access to Taurus the two songs were not substantially similar under the extrinsic test.

Here’s what this case sounds like…

The plaintiff’s appealed arguing that the district court: (1) failed to instruct the jury that the selection and arrangement of otherwise unprotectable individual musical elements might be protectable by copyright; (2) improperly instructed about originality; and (3) didn’t give them an “inverse ratio” instruction.

And the Ninth Circuit pretty much agrees, and has vacated the district court jury’s decision and remanded for a new trial.

So what?

Well, whether you’re a lawyer, musician, or just rock and roll fan, so this for starters:

The scope of the copyright in Taurus remains limited to its deposit copy sheet music (and not its recording). So the jury still shouldn’t listen to Taurus and compare it to Stairway. That would be prejudicial. But the Ninth says the jury should have heard the recording of Taurus when Jimmy Page did, as part of the access argument. 

“Wait, you say, they didn’t hear Taurus the first time?”

No. The first jury never heard the recording of Taurus; compared the respective sheet music instead. It’s hard to overstate the importance of this. Taurus begins with a very (very!) Stairway-like guitar introduction. It is much the whole point here.

A similar circumstance arose in the Blurred Lines trial too. The Copyright Act of 1909 says the protectable copyright is in the “deposit copy” — the thing you actually send to the U.S. Copyright Office. Nowadays the deposit copy is very often an mp3 recording, but it could also be sheet music, cassette (don’t giggle), vinyl; whatever serves best as the thing you want protected. Back in the early seventies, you sent sheet music, and the notes on the page are pretty much the extent of what’s protected. Most entertainingly in this case it so happens that neither Stairway’s nor Taurus’s guitar intros are in their respective sheet music deposit copies. Therefore the recordings of those intros were disallowed. And since Taurus, after the intro sounds (and on sheet music appears) a whole lot less like Stairway, this left the plaintiffs lots less to work with.

None of that changed really. The deposit copy is probably going to remain the thing we’re comparing in terms of similarity. This was upheld by the Ninth. But, even though the 1909 act is still in effect, the jury may hear Taurus this time despite. And it’ll be interesting here and going forward.

Get your disallowed audio played for the jury after all!

Copyright infringement, it’s a three legged stool.

  1. You need protectable stuff to begin with.
  2. It has to be substantially similar to another’s stuff, created after your stuff.
  3. The infringer needs to have somehow had access to the prior bit of stuff before infringing upon it.

Ok, nobody imagines Page had access to the sheet music. The plaintiffs need to argue he’d heard the recording. Since the jury was not to hear the recording, the district court decided Jimmy Page should go through the dance of heading off to another room, away from the jury, listen to Taurus, and return to be questioned about whether he’d heard Taurus before writing Stairway.

“No” says the Ninth; the jury should’ve been allowed to observe Page as he listened and I suppose check for physical signs of his recognition or perhaps guilty feelings? I can see that. But the remedy? They’re going to play that Taurus guitar intro and instruct the jury to not consider it when they decide on similarity? Far fetched? Yes, I’d say.

The improper jury instructions

“Selection and arrangement.”

The court should have instructed the jury that selection and arrangement of otherwise unprotectable individual musical elements could itself be protectable.

This one bugs me. A lot. Truly, I can barely imagine what this even means in this context. Taurus isn’t a sound collage.

All music after all is on some level an arrangement of unprotectable musical elements. A single note is an unprotectable musical element. A couple of them or a short series is possibly protectable, but it’s not very likely. So I think it’s pedantic to point out that a series or arrangement of unprotectable notes or groups of notes might be protectable. The precedents for “selection and arrangement” cited in the Ninth’s opinion are about computers and jellyfish sculptures. Sculpture aside a second, a computer is clearly an assembly of parts that each might enjoy its own patents, or not, and the assembly indeed might itself be protectable IP.  But it’s not that you get to string together a bunch of unprotectable stuff and that makes the stuff protectable by you; rather it’s your arrangement that becomes protectable. May-be!

But according to the Ninth’s opinion, “(The plaintiff’s) expert, Dr. (Alexander) Stewart, testified that there was extrinsic substantial similarity based on the combination of five elements—some of which were protectable and some of which were in the public domain.” I would love for anyone to tell me what these five elements were.

Defining “originality.”

The district court told the jury that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protectable. Ninth circuit says, and I agree, this is overly broad, technically inaccurate, and particularly since I suspect a five note chromatic scale was the heart of the plaintiff’s argument, prejudicial.

The opinion continues on the misinstructions around originality,  “Additionally, Jury Instruction No. 20 stated that “any elements from prior works or the public domain are not considered original parts and not protectable by copyright.” While this statement is not literally incorrect, it misleadingly 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.” And here I disagree. I would argue that it doesn’t suggest the “selection and arrangement” thing, because that thing is, well,  weird, and not to be assumed.

Okay, “weird” might not be the most useful argument. But someone’s gonna need to show me this “five elements some of which are public domain (that’s somewhere from one to four of em I guess?) and some not” argument, before I’ll start accepting that any jury instructions that don’t bend over backward paving a path in that direction are prejudicial.

Inverse ratio rule.

The more access Zeppelin had, the less they need to have jacked to be crooks. That’s the inverse ratio rule in a nutshell. Whether you are a good and thorough crook achieving “unlawful appropriation,” is a separate matter.  The district court didn’t spell out the inverse ratio concept for the jury.

This omission didn’t harm the plaintiff in the Ninth’s opinion. But next time do it.

The bustle in the hedgerow remains the same.

I wrote a bit last year about my opinion that Stairway doesn’t infringe upon Taurus. And I predicted that Zeppelin would prevail. And I did a little dance (in my mind) when they in fact did. Now I may have to reconsider before predicting the same next time. Everything was and is so weird.

The first jury got it right. Stairway doesn’t infringe upon Taurus even though they sound a lot alike. Along the way though, an imperfect system may have led the jury to that correct verdict for some not so great reasons.

Now, unfortunately, this new trial appears as unlikely to settle anything as was the first. Since the jury never heard Taurus’s nor Stairway To Heaven’s introductions, it wasn’t the trial it was meant to have been at all. This next one either.

Written by Brian McBrearty