September 11, 2019 Musicology No Comments

Stairway v. Taurus (actually Led Zeppelin v Skidmore) returns to court Monday, Sept 23 for an en banc hearing in the Ninth Circuit and although there are other articles here on Musicologize that cover this case from all angles, I wanted to recap a bit and compile the key aspects. Here’s a quick rundown on where are we and how we got here.

The headlines lately by the way have been frustratingly misleading –“Trump Administration Backs Led Zeppelin” types of things. So with regard to this hearing, here, despite such headlines, is we either aren’t, or are but should not be.

The Ninth Circuit en banc will not be comparing “Stairway to Heaven” to “Taurus.” In fact, this case never did that; not really. In the first trial, they compared ‘Stairway’ to a nearly irrelevant piece of sheet music that ostensibly represents “Taurus,” an abstraction at most. There’s more on that elsewhere on this site.

Today in San Francisco, they’ll be arguing matters of copyright law and trial procedure and astonishingly to me, whether a “selection and arrangement of otherwise unprotectable musical elements might itself be protectable.” I’ve said it before, but I’m saying it again. It’s one thing to question whether this concept should have been mentioned in jury instructions; it’s another to think it actually matters to this case. It’s beyond silly. It applies more to the way you build a computer from other IP owners’ components. It can’t reasonably be used to turn a well worn, public domain musical device into something protectable; not easily at least. This isn’t even an interesting thing to debate. But I digress.

They’ll also, I hope, discuss whether the “deposit copies” registered for older works at the copyright office constitute the entire extent of protectable IP in a piece of music. More on that in a minute.

Recap time. Here’s a quick summary/retelling of this case so far, and I look forward to coming back with an update after the en banc hearing today.

Stairway v Taurus — Basic Background

This case began in 2014 when Michael Skidmore — the trustee of Spirit guitarist Randy Wolfe — filed a claim that “Stairway To Heaven” infringed on the copyright of Spirit’s song “Taurus.” To prove infringement you must show both that the infringer had access to the infringed work, and that it is substantially similar to that work such that one can infer copying. 

Taurus and Zeppelin had toured together in the late sixties before Led Zeppelin composed “Stairway.” Also, there is a section of music in Taurus performed on acoustic guitar that is unquestionably very similar sounding to the famous guitar introduction to “Stairway To Heaven.” Despite the similarities, I do not think “Stairway” infringes on “Taurus,” but more on that later.

Here’s “Stairway To Heaven.”

Stairway To Heaven by Led Zeppelin on Youtube.

Here’s “Taurus.”

Taurus by Spirit on Youtube

First trial

Let jump right to how it ended. In June 2016, the jury found for the defense saying there was insufficient similarity between the two songs to find infringement.

By far the most significant factor in the trial was that the defense successfully prevented the recording of “Taurus” from ever being played for the jury, a considerable blow to the plaintiffs obviously but also to the world of casual observers wanting to know if “Stairway” was a ripoff. While zillions of music fans jumped on Youtube where “Taurus” now has over 5 million views, listened to Stairway and Taurus back to back, and debated the similarities, in the courtroom a barely related discussion was going on. They were dissecting sheet music.

According to the court, the Copyright Act of 1909 dictates that the only elements of Taurus that are protected by copyright are the ones written on the sheet music Spirit filed with the U.S. Copyright Office when they registered the copyright. This is known as the “deposit copy.” The deposit copy of Taurus is not a note by note account at all. And I’ll just go ahead and say, rock bands, by and large, aren’t big on sheet music, preferring instead to jot down guitar chord symbols above a sketch of a melody and maybe some song lyrics. So it was with Taurus. And by the way, Led Zeppelin didn’t write out all the notes of Stairway either. You might check out this article from Bloomberg Business wherein author Vernon Silver shows us what some deposit copies of famous rock song actually look like and asks if this means a bunch of very famous songs are somewhat unprotected by copyright?

During trial, Jimmy Page himself testified, which made for an amusing Rolling Stone article. And I covered it here as well.

Again because of the ruling that only the music represented by the deposit copy was protectable by copyright, the discussion of similarity was unfortunately reduced largely to the descending bass line that rather obviously characterizes both songs, but which is NOT at all likely what you might hum if asked by, say, a Martian, “How does ‘Stairway To Heaven’ go?”

In the end, the jury believed Zeppelin had heard “Taurus,” prior to writing “Stairway’ but did not find sufficient similarity between the two songs to infer copying.

Headlines blared that Zeppelin was found not guilty of infringement.

The plaintiff’s appealed.

Appeal and responses to the appellate decision.

In September 2018, the Ninth Circuit found that errors by the court harmful to the plaintiffs were significant enough to remand for a new trial. According to the decision, the jury was not appropriately instructed that an original selection and arrangement of individually uncopyrightable components might be protectable. Also, there were issues with the court’s possibly misleading instructions about what constitutes “originality.” Those are serious legal matters indicative of how murky the waters of determining infringement can be. Perhaps more entertainingly, the Ninth said the jury should also have been allowed to observe Led Zeppelin guitarist Jimmy Page as he listened to a recording of Taurus and thus perhaps better judge from his reactions whether he’d heard it before. This is I think sometimes misunderstood as it is often reported as meaning the jury should’ve heard Taurus after all. It’s further discussed that the jury might therefore have been asked to ignore what they heard for purposes of judging similarity and confine their thoughts to the access argument. But I’ve always understood that the Ninth probably would’ve preferred if Page had worn headphones while the jury observed him. The Ninth also made the suggestion that the jury should’ve been advised of the rather controversial “inverse ratio rule” that more or less says, “the more access you can prove, the less similarity you need to prove. And vice versa.”

This decision and this article are more about legality and process than about music, but truth-finding and forensic musicology depends on the intersection of the two. There are other articles here on Musicologize that delve into the arguments in the Ninth’s decision, mostly disagreeing with it.

Both the Zeppelin and Skidmore sides were dissatisfied as well. Zeppelin obviously liked the verdict as it was, and they disagreed that the original court’s errors were errors at all, and also disagreed that those supposed errors had any effect on the verdict. The plaintiffs meanwhile continue to argue that the jury should’ve been allowed to hear the recording of Taurus. As I understand it, Francis Malofiy, lawyer for the plaintiff, would say that copyright is established while not yet registered at the creation of the work as soon as it’s in fixed form. Then, although the songwriter might send a much simpler written out version just for purposes of registration, (in his words now) “there is no evidence, no statutory text, and no reason to believe that Congress ever intended that an author converting his common-law copyright to a federal copyright by registration could possibly shrink/modify the scope of his already existing copyright.”

He may have a point.

Then came the first in a series of amicus briefs that more or less echoed my thoughts on the Ninth Circuit decision.

First came the Record Industry Association of America (RIAA) which represents the biggest record labels and the National Music Publishers’ Association which represents the biggest publishers. Together they filed this amicus brief encouraging the Ninth to reconsider. Here I interpreted and concurred almost entirely with, the RIAA/NMB brief in also asked the Ninth to reconsider its decision.

En Banc Rehearing Announced

In June 2019, the Ninth Circuit announced that its active and not recused judges had voted to rehear this appeal en banc — meaning pretty much all the judges that can make it will hear and reconsider this appeal. That’s coming up fast, September 23, 2019.

There would be other amicus briefs, mostly asking that in the en banc hearing the Ninth consider the scary detrimental effects if the Zeppelin verdict were overturned, or even if the arguments of the Ninth’s opinion were at all validated.

For example, in July 2019 a group of 123 Songwriters, Composers, Musicians and Producers filed this amicus brief, in support of Led Zeppelin, which included…

“At the very minimum, this ruling, if adopted, would be certain to cause substantial confusion among songwriters, who only have twelve notes with which to work in the first place; songwriters need at least some certainty as to what basic elements of music are free for all to use.”

More recently, just last month, no less than the United States Copyright Office and Department of Justice filed their very own amicus brief in support of Led Zeppeli. The points are pretty similar to the others.

The en banc is going to reconsider the appeals related to the court’s instructions to the jury; whether “selection and arrangement” makes sense; and hopefully whether “deposit copies” as the extent of protectable ip make sense. Legally, that’s all interesting.

But morally? If nobody plays the recording of Taurus in the courtroom, even while I don’t happen to agree with Malofiy and Skidmore about the copying, I’m not sure how the resolution of Zeppelin v Skidmore will settle anything very much.

Written by Brian McBrearty