April 5, 2023 Musicology No Comments

In 2020, the Ninth Circuit famously found that Led Zeppelin’s “Stairway To Heaven” was not an infringement on Spirit’s “Taurus,” and the decision included that they were tossing out the so-called “Inverse Ratio Rule.” And I applauded. But now I’m reconsidering.

When I began to research new ideas about it, I was faced with my own writing from a few years ago. Then it was top of mind. The “Stairway To Heaven” trial, it seemed to me, had focused a long time on whether “Taurus,” the plaintiff’s allegedly infringed-upon work, was in Jimmy Page’s enormous record collection, or on whether Page would’ve been listening and taking in “Taurus” when the plaintiff’s band, Spirit, was a few times Led Zeppelin’s warm-up act. 

I could see value in getting the jury focused on that issue and having it play too big a part in their decision-making. (There’s a name for that, isn’t there?) I felt it would be confusing.

Let me explain the inverse ratio rule itself, quickly: It was established by the Ninth Circuit (the San Francisco-based US Court of Appeals) that the inverse ratio rule makes a ratio of two basic requirements of copyright infringement, “access” and “similarity.” Taken individually, these two things are pretty easy to understand. “Access” means “Did the accused infringer likely hear Song A before writing Song B? (Because you can’t have copied Song A if you’d never even heard it, right?”) And “similarity” asks, “Is Song B very much the same as Song A?” Also, in service to the question of access, we ask, “Is song B so very much the same as song A that the similarity is likely not a coincidence; and therefore, we should infer that the defendant must have heard song A first?” 

The inverse ratio rule took those two things — access and similarity — and reasoned that the more similarity you can find, the less access you should require to make your infringement case; and vice versa. And this is key because vice versa is what an inverse does! It simply flips the values and reverses the relationship, preserving the quantification.

And that’s simply nonsensical. Because if I write a song that is nearly identical to another, we might reasonably infer from that extreme similarity that I must have heard the earlier work. But the reverse doesn’t necessarily hold true; you can give me a perfect score for my familiarity with “Happy Birthday,” but it has little relevance as to whether the song I’m then writing will be similar to “Happy Birthday.” The ratio doesn’t serve us reliably in the inverse. 

I entertained the idea that the Ninth Circuit had a lapse in logic, adopted a non-sensical “rule,” and I had a good “gotcha” to talk about. Then when the Stairway To Heaven decision included tossing out the inverse ratio rule, I applauded. 

Then one day, I gave the matter additional thought and realized I had been hasty. 

No… that didn’t happen. 

What happened was I saw a video by Shyam Balganesh, a professor at Columbia, in which he described the Ninth Circuit’s tossing of the inverse ratio rule as a setback. I face-palmed and agreed. The inverse ratio rule was only simply non-sensical, not more thoughtfully non-sensical. Thoughtfully applied, of course, it was circumstantial evidence that could be taken into account in the service of finding truth.

Why did they throw it out? Why not explain and improve its application? Let me not repeat my mistake. Perhaps the Ninth Circuit rightly determined they did not have a good foundation on which to build. Or were otherwise wise.

So with the Ed Sheeran Thinking Out Loud case coming up, I’m considering how the rationale might apply there. In his recent successful defense of “Shape Of You,” the access argument was not persuasive. The judge clarified that the mere possibility of access was insufficient. But here, it’s different, more than a mere possibility.

Access doesn’t change the notes. Consider that according to a recently filed case, a plaintiff supposedly gave a CD of their song to a member of Mick Jagger’s family, and they believe the Rolling Stones copied that song. My opinion on whether a CD could be passed along to Mick Jagger and then whether he would likely listen to it is completely unimportant; I’m no expert on any of that. The analysis of the chords and melodies is what tells me, not that it didn’t happen, but that there’s nothing in the two works that causes me to believe it is likely. That is my area. I can tell you that the chords and melodies are not similar in the two works, and also that any points of observable similarity are not original to the plaintiffs’ work, or the defendants’ for that matter and not probative of copying. But what if there were a number of similarities, and of a certain nature?

Consider the question, “If we are very confident Jimmy Page did hear Taurus, then do the similarities between the two works lead us to believe he copied them in writing Stairway To Heaven?” Taken together, the two have probative value. They needs to be reasoned thoughtfully. 

In a few weeks, Ed Sheeran will defend against the idea that he copied the groove in “Thinking Out Loud” from Marvin Gaye’s (and plaintiff Ed Townsend’s) “Let’s Get It On.” Is there any question that Ed Sheeran had heard “Let’s Get It On” prior to writing “Thinking Out Loud?” Not really. And if we ascribe a likelihood approaching 100%, applying an inverse ratio rule simply would put us at a near certainty it was copied. And that’s wrong. But can it be applied thoughtfully? Of course, it can.

Do the two ideas, taken together, possibly lead to a more thoughtful inference? If you have a certain amount and type of similarity, and then you factor in a high probability or the near certainty, does it lead you to infer copying? Is that not a helpful question?

In the Rolling Stones case, I’d say it has no effect. In this upcoming case, I would say, yes, the familiarity makes it more likely Sheeran copied “Let’s.” And any Musicologize reader knows I’m mostly of the mind that Sheeran did not. But rather than be scared that my acknowledging the factor would be overdone, misinterpreted, or misapplied, I’d prefer to believe the court could apply it in the appropriate measure and justice would prevail.

The inverse ratio rule was poorly presented, beginning with its name. Records may be “meant to be broken,” but rules are actually meant to be followed. And this one could lead you off a cliff. And I think it might used to confuse juries. But I’ve reconsidered my previous position, and I’m certainly persuaded that since the inverse relationship was largely valid, it is a bit of a shame to simply have tossed it.

I’ll be darned.

Written by Brian McBrearty