October 6, 2020 Musicology No Comments

We can finally close the book on this epic copyright infringement case, technically at least. Robert Plant and Jimmy Page can relax. But it settled very little, and the thorniest issue remains.

A quick synopsis to get us on the same page:

In the original trial in 2016, Led Zeppelin was found not to have infringed on Spirit’s “Taurus.” On appeal, the plaintiffs successfully argued errors by the court, and that appellate court remanded for a new trial. Next, an en banc hearing in the Ninth Circuit set the appellate decision aside and upheld the original verdict. As a last-ditch effort, the plaintiff entered a Petition For A Writ of Certiorari, meaning they wanted the Supreme Court to take up the case. And now SCOTUS has passed on that. So we’re quite finished.

But after all the rulings in the original trial, the appeal, the en banc hearing, and even a brief encounter with SCOTUS, the most impactful issue by far was neither decided nor even tried — “Are they the same song?”

A bit more precisely, “Was “Stairway To Heaven” copied from “Taurus,” and does it sound so much like “Taurus” that it infringes?” That was the question. It’s what this was all about, right?

No!

It didn’t go that way at all!

What did they decide? The original trial and subsequent reviews affirmed that the Copyright Act of 1909 (not the 1976 Act) is the controlling law. This affirmation reinforced that the scope of copyright, for Taurus and all other works registered before 1972, is defined by the musical notes on the sheet music deposit copy submitted for registration with the US Copyright Office. 

I’ll play it for you later. But for now, let’s just appreciate the brevity of it.

The en banc hearing gave us one gift: they set aside the long criticized “inverse ratio rule.”

“The what?”

The inverse ratio rule makes a ratio or relationship between, first, “How similar is Song A to Song B?” and second, “How familiar with Song A was its composer when they came up with Song B?” The rule reasoned that the strength of one bolsters or compensates for the weaker other. So, lots of familiarity makes up for not so much similarity, and vice versa. And if at first, you don’t see why this is nonsensical, be patient with yourself. It took the Ninth Circuit many years. Look around here for a few Musicologize articles that touch upon it.

Enough about that.

It was an opportune time to abandon inverse ratio. The jury verdict indicated they believed Page was probably familiar with Taurus, either because Spirit and Led Zeppelin shared some stages, or because Page had the Spirit album in his vast record collection.

Also, some lawyerly stuff came out of the en banc hearing — the wisdom of making your best arguments during the trial and not saving them for the appeal — that sort of thing. But far and away, the essential enduring issue is the Copyright Act of 1909 and how it might impact future cases, not the least of which Ed Sheeran’s “Thinking Out Loud” versus Marvin Gaye’s “Let’s Get It On.”

As we wrap this up, let’s not think things were resolved that weren’t.

Today I’ve read lots of “Stairway Doesn’t Infringe!” articles across entertainment media that, except for Ben Sisario’s writing for the New York Times, mostly mischaracterize what actually happened and what it means for the record industry. I’ve seen this mostly irrelevant quote from the en banc decision too many times:

“We have never extended copyright protection to just a few notes. Instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression in a song.”

From the Ninth Circuit’s Ruling

That’s not new. They’re referring to the chromatic bass line shared by both works.

Of course that’s not protectable. If you’re at a piano, it’s four consecutive keys. But the plaintiffs didn’t go to war over a four-note bass line. There’s nothing landmark in not holding that a four-note sequence “common in the music field” would be unprotectable. And none of this really led to an opinion that Stairway doesn’t sound as though copied from Taurus. The litigants did indeed find themselves arguing over a four-note bass line, common in music, and unprotectable by copyright, but it was because the recording was excluded from the trial and the bassline was mostly all that was left.

Rightly or wrongly?

It’s not that the rulings on the Copyright Act of 1909 are wrong. Legally, they’re almost certainly right. But the law is inadequate, and its affirmation here will redirect and focus that inadequacy right away in the upcoming Ed Sheeran trial, and then perhaps repeatedly until the law is either reformed or in time fades in irrelevance as the affected works pass into the public domain. The latter seems almost like it’s the intended lazy strategy.

The jury never heard Taurus’s album recording, which was the basis for the plaintiff bringing the lawsuit and which sounds a ton like Stairway. Instead, the jury heard only the notes on the deposit copy page, which sound nothing like Stairway. And so went the ruling, because it had to. So went the appeals, because they had to. And all of those decisions perhaps because the Copyright Act of 1909, well over a century ago, limited the scope of copyright to the notes on the page.

One article today shared a video comparing the two works from the BYU Copyright Office. In it, first, you’ll hear the part of Taurus that sounds, as I said, a ton like “Stairway;” then like it or not, you’ll listen to Stairway itself. Worse, you’ll then get them at the same time, layered over the top of one another. But if you’ve never heard Taurus, here’s an opportunity. You’ll hear what the jury never did.

And here again is what’s on that deposit copy page.

That goes something like this.

(I can’t trill like I use to.)

Similarities? Sure. But on the whole, it doesn’t really sound much like Stairway.

This is going to continue to be a problem.

Copyright protection needs something to represent and define the fixed work; otherwise, all works would have an broad and ethereal accompanying orbit of IP comprised of all the various versions you might record, iterations along its development timeline, etc. That’s plainly untenable. This is tricky, and I don’t have a solution.

Take It To The Limit

Here’s an illustration of the problem. Just consider all the instrumental featured parts from your favorite popular songs — guitar solos that you know by heart for example. The ones that became as much a part of the song as the lyric and melody. For me, the first that comes to mind is the almost interminable and indulgent solo from The Eagles’ “Hotel California.” If you’re between the ages of 20 and 70, there’s a great chance you can hum every note. And it’s quite a lot of notes.

Those notes aren’t in the Hotel California deposit copy. And neither by the way, is the just as famous guitar solo from Stairway To Heaven in its deposit copy. And, coincidentally, the underlying harmonies of these two songs are quite relatable to each other. These four bass notes are indeed “common throughout music.”

And I could show you the guitar solo from Hotel California played against those four bass notes from Stairway To Heaven (and from Taurus) and I’d have something like

And what of the copyrights of the Eagles, Zeppelin and Spirit? You’ve never heard my “Stairway To The Hotel California” before, but you could’ve hummed along to the first listening. You’ve known those melodies your whole life. They’re not protectable, because they’re not notated in the deposit copies? That has to be some kind of unacceptable. I understand how we wound up here. But why would we settle for staying here?

If you’d like more on this aspect, Vernon Silver wrote a whole article for Bloomberg. Here’s that.

Comments super welcome.

Written by Brian McBrearty