August 18, 2020 Musicology No Comments

One of the most famous songs in rock n roll history is potentially headed to the Supreme Court. And Musicologize has followed the case from the very beginning, so just a tiny bit of “how we got here,” before we talk about what comes next: In the original trial that questioned whether Led Zeppelin lifted “Stairway To Heaven” from “Taurus” by the band Spirit, Led Zeppelin was famously found not guilty. Then after a couple of rounds of appellate reviews, the not-guilty verdict was ultimately upheld. Perhaps though it was penultimately, because a Petition for a Writ of Certiorari was filed on August 6 and it asks the Supreme Court to take a look at a couple of complicated points on which the case may indeed have turned.

Should a deposit copy define, as the en banc Ninth Circuit panel ruled, “the four corners” of a song’s copyright?”

That’s the first matter this petition takes up, rightly — the ruling that the sheet music deposit copy (of Taurus) defines all the material for which Spirit can enjoy copyright protection. This as opposed to the album recording of the song. This is the lion’s share of the enchilada, and if the Supreme Court decides to look at Stairway, it will be the reason.

The premise is simple, the deposit copies of tons of rock and roll songs you know by heart are usually no better than the “cliff notes” of the song, both in terms of breadth and depth. (This Bloomberg article by Vernon Silver made the point.) When deposit copies were submitted to the copyright office, they were very often only skeletal depictions of arrangements; simply and economically the melody, lyrics and some chord symbols. Whole sections of songs — famous-as-hell guitar solos and introductions, for example — were routinely omitted. In other words, these lead sheets were the minimum effective representation of the most crucial elements of the song; sparse, truncated; short-changed in breadth and depth.

And one might reasonably ask, “if the shoe were on the other foot, does the deposit copy of Stairway To Heaven include its guitar intro?” No, it doesn’t. And is the intro to Stairway not protectable?! Suppose it’s not!

The court never allowed the jury to LISTEN to the recording of Taurus and determine if Stairway sounded too much like it. The petition will argue the law on this, but just on its face, it’s stupefying, is it not?

Also, the petition takes up “Selection And Arrangement” as a form of originality, claiming that the Ninth Circuit essentially ignored a century old understanding of originality and replaced it with a more narrow one. “Selection and Arrangement” says, with an old phone book trial as the case law, that a combination of otherwise unprotectable elements selected, arranged, and combined in an original way gets protection for the selection arrangement and combination. A few technical issues aside, selection and arrangement was given short shrift at trial. On appeal, the Ninth chose not to reverse for it.

My first issue is just an aside: Ouch! Jimi Hendrix’s name is misspelled as “Jimmy.” more than once.

My next is that the petition repeatedly calls the deposit copy ruling an issue “of first impression,” but I thought the Blurred Lines trial declared the deposit copy the alpha and omega of the protected material before the Stairway trial. I could be wrong, like in some very specific way that would arguably leave “order of first impression” an overstatement. 

Really, that’s an aside too. 

More substantially, as soon as the Ninth affirmed the deposit copy ruling, it moved the bar for the upcoming Ed Sheehan case, dramatically narrowing the scope of material at issue therein.

As it will obviously continue to do. Again, the 1909 act governs every piece of music before 1978 and thus the ruling calls into question the copyright protection of decades of famous songs.

It’s an issue worthy of careful consideration.

Again, for anyone unfamiliar, both recordings include very similar acoustic guitar sections in their repspective beginnings and in Stairway’s case, the same material continues throughout most of the song. The most similar material is all by completely missing from the sheet music deposit copy that plaintiff attorney Francis Malofiy calls “incomplete.” Relative to the recording, it’s certainly that.

There’s a problem I think in the petition arguing that Taurus was “in a concrete, definite, and final form” prior to the release of the Spirit album that contained Taurus. This is an issue. Isn’t it partly the point of registering a fixed form deposit copy that it defines the scope of copyright? A protectable piece of creativity needs some boundaries. You can’t claim copyright of all the creative and developmental iterations that led to your final version, any of which might infringe upon another work. Or, you can, but you would need to register them individually.  Nobody does that.

So the plaintiff’s argument that copyright already exists before registration and that “a common law copyright “received” federal protection— not that the deposit created a new work or altered the scope of an existing common law copyright,” can coexist, I’m afraid, with the idea that it altered the scope only because the registrant didn’t deposit a better example of the thing being registered!

But perhaps that’s too much to ask. Perhaps we can take that on a case by case basis when the need arises. when it promotes justice.

“(As the panel did,) the en banc opinion erroneously claimed that only sheet music could be copyrighted under the 1909 Act, failing to accord proper significance to the fact that the common law governed the creation of copyright.’

Alfred J. (AJ) Fluehr’s Petition

The petition argues, “…the deposit did not define the scope of copyright. However, that beggars the question, what was the purpose of the deposit requirement? 

Alfred J. (AJ) Fluehr’s Petition

Another aside: That’s not what “begs the question” means, and “beggars the question” isn’t a thing, I don’t think.

More importantly, here comes what I think is the big question: Doesn’t the deposit requirements state that a “complete” copy be submitted? And is this not meant to define the scope?

The petition argues no — that the deposit copy is for basic archival purposes, just an indication of the copyright, not the “four corners” of the protected work; a formality.

“If this petition is denied, and the Ninth Circuit’s opinion reversed, it will divest virtually every owner of a 1909 Act musical work of their copyright. “

Yeah, it effectively might. It sure sets the bar for similarity awfully high. Whose fault is that? Perhaps the registrants. But isn’t that a separate question? What kind of justice do you want.

sBy the way, in my opinion, none of this will ever make Stairway musicologically substantially similar to Taurus. Nothing does; they sound a lot alike. Think of that as unsubstantial. Musicologists can argue it with me. But I doubt a single musicologist, other than perhaps one personally involved and invested, would say that Stairway is musicologically substantially similar to the deposit copy submitted with Taurus’s registration. And thus, society may have been deprived of the case it deserved. The ends here certainly don’t justify the means. So I’ll be delighted if the Supreme Court takes this up. But I’ll believe it when I see it.

Written by Brian McBrearty