June 12, 2019 Musicology No Comments

Headlines broke out earlier this week about Stairway To Heaven going back to court. Those headlines have people confused. So, here’s what’s really happening and what’s likely, according to me, to happen next. 

For those of you in a hurry I’ll make these few main predictions:

  • There will not be a whole new trial. Zeppelin’s prevails. Done.
  • They’ll avoid the broader question about recordings versus deposit copies. Everything we went through here and in the Blurred Lines case — we base certain cases on what was scribbled and sent to the US Copyright Office, not what’s on the recording — all of that will annoyingly persist.
  • The “selection and arrangement” law is the issue they’ll take up. It’s less involved than the deposit copy stuff, and it’ll somewhat appease people like me who think it’s misapplied, dangerously overprotecting copyright holders — a bad thing for future creativity.

What does any of that mean? Got time for a longer explanation?

Cool. First, a very quick recap…

  • Led Zeppelin got sued for copying Taurus to make Stairway To Heaven. 
  • Zeppelin was found not guilty of infringement. 
  • Plaintiff appealed on various grounds; that appeal (9th Circuit) was largely successful, and a new trial was ordered. 
  • That successful appeal has been thrown out, rightly. 

Why “rightly?” I’ve already covered that. And covered it. And covered it some more.

People are asking me things like, “what do you think about Stairway being retried?” And the headlines kinda read that way, but “retried” is probably not what just happened. The ninth in this new announcement haven’t been super clear about the scope of the en banc hearing, but I really doubt we’re going back to square one.

After the first appeal, the plaintiffs thought they already HAD a new trial. They DID have it. Now that’s gone “poof.” The Ninth Circuit has decided (probably) to do the appeal part over, but this time “en banc,” so it’ll be eleven judges instead of three like last time.

Are they going to ask the big question that plaintiff lawyer Francis Malofiy I think wants asked, which is, “shouldn’t we be listening to recordings in these trials instead of relying on the sheet music deposit copies?”

No, I very much doubt they will. But, it’d be awfully nice.

Nice first off because it’s fascinating to delve into the intent of hundred year old laws and the citable decisions since 1909 that might affect how we interpret them. But mostly because we should be asking ourselves why finders of truth are handcuffed by an inadequate law interpreted here to mean that Randy California only has copyright of the music that he included in the deposit copy of Taurus — the written notation plus what little else a musicologist might testify is implied, but not on the additional musical events and qualities on the recording of Taurus. That’s not dumb?

The law means well but puts us in this spot. It’d be great if they tackled that, or just gave the ball a push. But I’ll eat my hat.

For everyone already familiar with all that — that only the deposit copy of Taurus was considered the first time — there’s another available misread of the current headlines — and it’s that the court is going to “hear” Taurus and Stairway finally.


I mean, maybe. But…

The initial appellate court, upheld that the jury should not have heard the recording of Taurus, while agreeing with Malofiy that Page himself should’ve been made to hear it while the jurors observed his face for signs of recognition or something. And I don’t get that. Page wasn’t denying ever having heard Taurus. Does anybody think he waltzed into court never having listened to the song he supposedly lifted? Of course he knows the song now! And the original not guilty verdict did not turn on this at all. The jury accepted the proof of “access” — that Page had heard Taurus before writing Stairway. The jury just didn’t care.

Malofiy wants another bite at this particular apple any way he can get it. Don’t blame him. If the jury hears the recording of Taurus, it’s a different ballgame. I just don’t see it happening.

What’s more likely I think is that they’ll shut down or at least express disapproval at the “selection and arrangement” argument. The now thrown-out appellate decision (I don’t know how else to refer to it) said one of the reasons for ordering a new trial was that the original judge failed to instruct his jury about a law that says “a selection and arrangement of otherwise unprotectable individual musical elements could itself be protectable.” You can take that to mean something like, “one might employ some unprotectable public domain musical ideas however long, short, substantial, or not, and combine or string them together in a certain way, and that whole thing could then somehow be protectable.”

Yeah, it could be, but it almost never will nor should be, so let’s at least take up this one issue and have some good come out of all this. Let’s not have “selection and arrangement” become this impractical, bewildering, Hail Mary of an argument that we routinely implant in our jurors’ minds just before they file out. They’re confused enough.

All that was fun to say, but really what’s going to happen I suspect is the initial verdict will be upheld, Zeppelin wins, and little else.

Written by Brian McBrearty