July 3, 2019 Musicology No Comments

Everybody knows Led Zeppelin was/is getting sued by Spirit over “Stairway To Heaven.” And almost everybody knows Ed Sheeran is getting sued (what else is new?) by Ed Townsend over Marvin Gaye’s classic “Let’s Get It On” which Townsend co-wrote. I’ve covered both cases quite a bit, here and here, and actually if you wanna look around there are probably a handful of reports besides those two. To summarize though, the odds, according to me, are that Zeppelin and Sheeran both prevail. But those odds are shifting, a lot, and stand to shift more in the future.

Both Sheeran and Zeppelin were supposed to be getting it on in September, but now according to Law 360 the judge on the Sheeran case, Louis L. Stanton, says his trial will wait while we see what arises from the Zeppelin case. As he put it, “It’s going to be damned educational.” And as anxious and impatient as I am, he is probably right. The Ninth Circuit is reviewing the “Stairway To Heaven” case en banc. That means lots of judges considering lots of big issues. Interestingly, both of Stanton’s combatants have evidently argued that the foreseeable decisions from the Zeppelin/Spirit trial favor their own respective clients in Sheeran v Townsend.

The far reaching aspects of the Zeppelin case are centered around the fact that works registered with the copyright office prior to 1978 were submitted as sheet music and not as recordings. Those written versions were frequently just shorthand sketches that left out whole sections such as intros and orchestration elements. The “deposit copy” of “Stairway To Heaven” for example begins at “There’s a lady who knows…” and omits the whole famous guitar introduction — the very thing at issue in the case. The deposit copy of Taurus presents the same issues. The Ninth is evidently going to consider whether copyright is limited to just the notes on the deposit copy and whatever inferences can be drawn from them. (Musicologists can infer a certain amount of additional music from these sketches, rather like being able to read shorthand.” This is the current view. And also, whether the recordings themselves should even be heard in court.

In the famous “Blurred Lines” case, it was determined that the recording of Marvin Gaye’s “Got To Give It Up,” would NOT be heard by the jury and that only interpretations of the shorthand “deposit copy” performed by live musicians in the courtroom were allowable. Gaye’s case prevailed nevertheless, but when the “Stairway To Heaven” jury was not allowed to hear the recording of Spirit’s Taurus, it very possibly swung the case in Zep’s favor.

Led Zeppelin’s exoneration though was temporary, thrown out on appeal and a new trial ordered. And was THAT thrown out. Now the Ninth Circuit is going to take a good look at the first trial again, possibly deciding that the law needs to be fixed, and that copyright prior to 1978 covers a whole lot more than the deposit copy. 

And since “Let’s Get It On” came out in 1973, that would have tremendous impact on the Ed Sheeran versus Ed Townsend trial. And so they’ll wait.

When the summer ends, we’ve got something to look forward to.

Written by Brian McBrearty