What’s next, following this week’s en banc hearing?
Earlier this week, eleven Ninth Circuit judges heard arguments in the continuing case of Skidmore v. Led Zeppelin, the ‘Stairway To Heaven’ infringement case. This en banc hearing focused not so much on musical matters per se but legal ones such as erroneous jury instructions in the original trial, copyright law dating back to 1906, and controversial concepts such as the “inverse ratio rule” and “selection and arrangement” both of which we’ll very briefly explain later.First a very quick recap:
- In the original trial, the jury found that Led Zeppelin did not infringe upon Taurus.
- In the subsequent appeal, a three-judge Ninth Circuit panel remanded for a new trial because of erroneous jury instructions in the original trial.
- That appellate decision was set aside and the Ninth subsequently announced this week’s en banc hearing.
And it was pretty fascinating stuff. We heard from plaintiff and defense counsel both of which had issues with the appellate court’s points, as well as from the Copyright Office, or as news headlines trumpeted (not for effect at all) “The Trump Administration comes out in support of Led Zeppelin.”
The first big issue: the audio recording.
Background: The single biggest factor in the original trial was probably this: that court, like the one in the Williams v Gaye Blurred Lines trial, held that it was the “deposit copy” of ‘Taurus,’ the page of sheet music that was submitted for registration with the US Copyright Office, and not the recording of Taurus, that defines the scope of protectable copyrighted material. Hence the ‘Stairway’ jury was barred from ever hearing the recording of Spirit playing ‘Taurus’ during the trial. The jury could only hear performances of the notes shown on the deposit copy. The recording we all know as “Stairway” would need to be found to infringe upon the notes on the deposit copy sheet music of Taurus.
In Monday’s hearing, attorney for the plaintiff, Francis Malofiy, spent almost all of his time arguing that this was “a travesty,” essentially because the deposit copy was a terrible transcription of the composition and the recording was a much better one. He argued the absurdity, that Jimmy Page never saw that deposit copy but he owned the record. So “Why”, Malofiy asked, “are we looking at this artificial analysis that never happened in the real world?” “It’s wrong, it’s artificial, it’s imaginary.”
But as the Copyright Office representative would later testify, Taurus is subject to old law. Were Taurus recorded today, or since 1978, the recording would be more relevant. But Taurus is subject to an interpretation of copyright law going back 110 years, the Copyright Act of 1909, which defines “publishing” as not including recordings. It was amended in 1979, but not for recordings as old as Taurus.
This was the hill Malofiy was willing to die on. And he was arguably invited to do so. Gradually the questions the panel posed to Malofiy narrowed the argument to this one issue.
“Are you conceding today that if you are confined to the deposit copy your copyright claims… are not viable?”Ninth Circuit Judge
Malofiy answered, “I think that it is very difficult for plaintiff to win based on the deposit copy because it was such an inaccurate transcription of the composition that Randy California wrote.”
“Is that a ‘yes?’ If we were limited to the deposit copy then there would be no infringement because that’s not as you say an accurate reflection of the sound recording but if you were to take aside, set aside, the sound recording and focus just on the deposit copy then plaintiff could not prevail?Ninth Circuit Judge
Malofiy’s nonbinary response was interrupted and when he was pressed for a clear ‘yes’ or ‘no,’ he answered, ‘Yes, that is the reality of the situation.”
Then, probably the moment…
“If the law is that the deposit copy is the ‘four corners’ of the copyright claim, there’s nothing else to retry, correct?Ninth Circuit Judge
Responding, Malofiy insists, “Why does the defendant not want to hear the album recording? Because they will absolutely lose the case!
“And you lose the case unless they do; a hundred times out of a hundred, right? You’ve gotta get your sound recording in in order to win this case, don’t you?”Ninth Circuit Judge Hurwitz
And although Malofiy pivoted to again try argue the recording is “the best evidence,” but he was pressed for a more straightforward answer and admitted, “I think so.”
Was Malofiy wrong to get himself out there on that limb? The chances of winning without the recording are certainly not zero. The Gaye’s won Blurred Lines without it. And Katy Perry’s Dark Horse trial recently reminded us that juries remain unpredictable. But the plaintiff here is already 0-1 on “substantial similarity” to the deposit copy. I essentially agree with Judge Hurwitz and with Malofiy. He needs the audio. I think he made a reasonable gamble given what he knew at the time. Why?
‘Selection and Arrangement’ is a losing argument.
Led Zeppelin attorney Peter Anderson’s spent just his first few minutes responding to Malofiy’s audio recording arguments but then moved on to the issue that hurt him in the appeal, “selection and arrangement.” The original court failed to instruct the jury that this idea exists.
“Selection and Arrangement” applied here suggests that a collection of non-protectable commonplace musical elements like scales and chords and rhythms might be “selected” and “arranged” in an original way that becomes itself a protectable thing. Anderson explained lots of reasons, some procedural, some logical, why the concept didn’t fit this case.
The other complementary moment that perhaps sealed it for Zeppelin.
Here’s where I think Malofiy died, arguably gallantly, on that other hill. In the midst of Anderson’s “selection and arrangement” series arguments came this…
It was put to Anderson:
I wonder why you (Anderson) are fighting this so hard. It seems to me that assuming the copyright analysis is limited to the deposit copy, any error here is harmless because no reasonable juror could find that the alleged copying was unlawful appropriation of the deposit copy, so why couldn’t we simply assume that the instructional error occurred and find the error harmless?Ninth Circuit Judge
Anderson: “I agree wholeheartedly.”
Did she not just broadcast the most likely ruling to come out of this? Unless they want to upturn a bunch of precedents, rightly or wrongly the deposit copy is probably the law. So combined with Malofiy’s admission that under that law the plaintiff can’t prevail, which forfeits his possible “selection and arrangement” lifeline, this judge asked, can’t we therefore just call the court’s failure on the “selection and analysis’ instruction an inconsequential error?
Personally I’d love to see the recording come in because it’s a more interesting musical discussion. But I don’t expect it. All the energy from this hearing seemed to take us to this crystal ball vision. They’ll reiterate that some jury instructions were erroneous, but they affirm the ruling on the Taurus recording. And then logically, since he didn’t and probably can’t win without it, the original verdict will be upheld.
The Inverse Ratio Rule.
Here I’m going to rant, briefly. Anderson was asked, apropos of nothing, to speak a bit about the “vitality of the inverse ratio rule.” And he obliged. That’s five minutes that none of us get back. The silliness of the ‘inverse ratio rule’ can be easily understood by a sixth grader. It says, where we’re more certain that the alleged infringer had access to the allegedly infringed work, we can then require less substantial similarity between the two works as probative of copying. And vice versa.” I’ve covered this.
So maybe, just maybe, even though it’s an aside, MAYBE, when they rule on this the Ninth will take this opportunity to do away with the Inverse Ratio Rule. But I’m betting not.
The Ninth makes these hearings available, so you can watch the whole thing if you like. I’ll post it here at the end.
Friendly arguments welcome. Catch me on twitter.