At the end of a long Stairway To Heaven trial, we know Led Zeppelin was found not guilty of infringing on Taurus, but does that mean Stairway doesn’t add to the long list of songs that Zeppelin has been accused of plagiarising? We’ll explore how the Stairway trial went; why Stairway doesn’t infringe (arguably); and consider whether another discussion might be had about whether it’s still plagiarism.
Does anybody remember albums?
1968 — Spirit (by Spirit)
The song “Taurus” appears in the middle of side one. It’s a 2min 37sec instrumental characterized mostly by its acoustic guitar introduction which we’ll hear shortly.
1971 — Led Zeppelin IV
- Worlds biggest rock band first half of the 70’s
- Preceding albums, Led Zeppelin I, II, and III were all successful, but IV was 10x. 20M+ copies.
- “Stairway To Heaven” was the final song on Side A. (8 min long! Not released as a single. Never a Billboard charting hit.)
- Widely considered the “Greatest Rock n Roll Song of All Time.”
It was thirty years after Led Zeppelin IV that I first heard Taurus. And since Stairway was “The Greatest Rock Song Of All Time,” Taurus sounded like Stairway, not the other way around. And when this case emerged, I played Taurus on the piano for a neighbor and she said, “That’s “Stairway To Heaven,” Led Zeppelin stole that and nothing you say will change my mind.” She didn’t even want to hear my musicological “yeah, but’s” and it’s okay if you feel the same way. But there are all kinds of ways to look at it.
Infringement’s 3 Legged Stool: Access/Similarity/Originality
1. ACCESS: Is it reasonable to believe Jimmy Page heard Taurus before writing Stairway?
Consider the Access argument:
- Spirit wasn’t unknown. “I Got A Line On You” had reached 25 on the charts in 1968.
- Led Zeppelin warmed up for Spirit at least once in 1968.
- Both bands were performers at two music festivals in 1969.
- Guitarist/Composer Jimmy Page has the Spirit album in his enormous record collection 40 years later.
It’s certainly possible Page heard Taurus. Is it probable? I’m 50/50. What do you think?
The Stairway jury accepted the access argument.
2. SIMILARITY: Are these works similar enough that we should infer copying?
Obviously, these sound a lot alike to a layperson and to a musicologist as well. They are a lot alike. But how do I go about analyzing for similarity that leads to an inference of copying rather than coincidence.
For the musicologist, there are lots of ways to analyze two works, some sketchier and more novel than others, but usually, it’s a process something like this:
- Listen critically — listen to both works.
- Dissect and Distill — identify the areas deserving scrutiny
- Transpose and Transcribe — convert both to the same “key” and write out the notes
- Compare for similarity
- Relevant Melody – Pitches occurring over time. Most important.
- Lyric – Similarly important, usually, N/A here. Taurus is an instrumental.
- Harmony – Pitches occurring together. Gives context to the melody.
- Everything else: harmony apart from melody, rhythms, instrumentation, form (song sections), style, groove, tempo, key, et cetera, of diminishing importance.
Someone sketched out the first three bars for us.
The notes in red are where identical pitches occur at identical points in time. There are twenty-seven or so notes per “melody” in each song, 9 are actually the same. Are you at all surprised it’s only 9? I would’ve been. It sounds like it’s gotta be more doesn’t it?
Just looking at it, even if you don’t read music, both works are a series of 24 mostly equidistant notes, and notice the first and lowest notes of each four-note grouping. Those are nearly all circled. Those make up the bassline. So of the nine, five are the bassline. Is that interesting? It will be.
Kinds of thoughts going through my head right away:
- Depsite myself, first thought: “9 circles. What’s 9/27?” Is 33% a lot? It depends!
- “What about the relative importance of certain notes over others? Which are the notes that most give these melodies their character?”
- “Are all twenty-four of these notes really “melody” in the first place? Maybe just some? What about the sixth and seventh notes in the first two measures of Stairway for example?”
- “After those considerations, do we have enough notes in common to find it conspicuous?”
- “They are certainly a similar musical idea, but we don’t protect ideas, just the execution of ideas.”
- “This is moot without distilling for originality.”
Here we ask, “if indeed Stairway is a copy of Taurus, are the copied elements original to Taurus, and therefore protected by copyright?”
Relevant concepts: Building blocks and Line Clichés
Musicologists often speak of unprotectable “building blocks,” which in music and elsewhere are the essential basic elements UPON WHICH larger things are created and developed. They’re not the architecture, but they’re the architectural elements — arches, chimneys, pillars — that architects work from.
“What basic elements in music are not protected by copyright?” The first thing on the list is:
Common property musical scales and arpeggios (Section 802.5(A).Copyright.gov website
In Taurus, those five identical lowest notes we identified from each four-note grouping form a bassline of five consecutive adjacent successively lower notes, appearing at equidistant time intervals. They’re a scale, a series of notes in order of pitch.
Okay, so that’s a scale, the grand poobah of building blocks. Nobody owns building blocks.
Line clichés are a songwriting device or technique. Neither the word “cliché” nor “technique” sounds like the stuff of copyright. You’ve heard line clichés a million times. If that’s what we have here, that’s a problem for Taurus’s originality, right?
Let’s hear a few Line clichés:
Listen for one note changing while the others stay the same. The bass note in the first two examples and an inner voice in the third.
The first few songs other songs that occurred to me as using the very same line cliché as in Taurus and Stairway were My Funny Valentine, This Masquerade, and Time In A Bottle.
In court, I remember they mentioned Chim Chim Cher-ee from Sound Of Music as well. Same line. Same five notes.
So both Stairway and Taurus are line clichés. Is that all they are?
Here’s some of the distillation I mentioned earlier. Two considerations or approaches:
First, if arpeggios are chords, and chords are harmony/accompaniment, then where’s the melody in these two works? If I ask you to hum Stairway, which notes do you hum? Try it.
Then if line clichés are unoriginal cliché, and courts will seek to filter out what’s not protected by copyright and look at what’s left, what would be left of Taurus?
Here’s Taurus, which I’d bet you’ll now hear clearly as a line cliché, followed by Stairway except that Stairway is stripped of most of that same line cliché. Consider than if I stripped the line cliché from Taurus, Taurus would vanish completely. It is nothing else. Stairway meanwhile is still pretty much Stairway.
So as a musicologist for the defense, I’d cross out every note of Taurus because every note is a building block, or a line cliché, or both. And then there’s not a protectable note left against which to compare Stairway. For all kinds of reasons, it wasn’t as simple as that, but it could’ve been. Instead, this trial was wholly unsatisfying. I’ve complained at length.
“Okay fine,” you say, “maybe it’s not ‘infringement,’ technically, but even if we accept this building blocks argument, aren’t we still left wondering if Led Zeppelin copied Taurus to arrive at having written the “greatest rock n roll song ever?!”
Yeah, it’s not as if they’d never appropriated other people’s work before. About half the songs on their first three albums and two more on this one were arguably lifted, or “nicked” as they themselves would put it. Where’s their morality, we might ask? Where’s ours?
My originality, or lack thereof, points apply to both songs, but we focused logically on Taurus. The notes played in the respective intros are not especially novel, especially Taurus, and that’s the winning argument, so we made it.
But, duh, they sound the same:
Plagiarism versus Infringement
Or Morality and Ethics versus Illegality?
Plagiarism DOES include ideas! If you steal the premise of a joke, a stand-up will want your head on a platter. You had better give attribution if you’re even going to repeat a joke. Far less than passing it off as your own.
It might not be exclusively Randy California’s guitar-specific idea to start at that A minor fingering and work down the guitar neck, or you might argue it is, but that doesn’t necessarily matter. It might’ve been Page’s only exposure to the idea.
Then suppose you knew a lot more:
Suppose you knew Page listened to Taurus intently during those concerts. Does Page know “My Funny Valentine?” Maybe/maybe not? Does it matter?
Or, if Page admired Taurus and knowingly used it as the core idea to create Stairway, is that plagiarism even while there might be, known to Page or not, 17th-century works that use the same line cliche?
Suppose he intended to steal Taurus, but could only kinda remember it?
What of my soul by the way? If I help a client UN-infringe their too alike “soundalike” for a commercial, am I helping them plagiarize? If so, is that “wrong?” Should I not?
A THRESHOLD TO NAVIGATE
We bother because society benefits from encouraging creativity through a balancing of protecting rights holders while enabling new music that doesn’t sound like nails on a chalkboard for the sake of being completely unlike what’s come before.
That’s a threshold full of nuance and complexity. Is there a better system than the one we’ve got; lawyers and musicologists arguing whether the threshold is crossed?
Engaging in immorality or plagiarism may get you shunned. But we don’t sue over it. Copyright infringement hurts somebody monetarily and it’s illegal.
INFRINGEMENT, and what actually happened in court
Recall that friend of mine who heard Taurus for the first time and said, “That’s “Stairway To Heaven” and nothing you say will change my mind.”
As the plaintiff’s you had to be thinking, “When these two works are heard by a jury, the response will be something close to “That’s “Stairway To Heaven” and nothing you say will change my mind.”
But they ran into a problem.
Copyright, the “right to copy,” of course gives its holder the exclusive right to publish, sell, perform, and reproduce the protected work.
But what was the protected work?
The prevailing law was the Copyright Act of 1909 which essentially predates recordings and recognizes only the deposit copy registered with the copyright office as the protected work. The defense made a motion and the recording of Taurus was not going to be heard by the jury in any context.
By the way, this happened in Blurred Lines too and the plaintiffs miraculously overcame it.
The deposit copy of Taurus looks like this.
The recording is not going to be heard, so instead they’ll hear the sheet music which will sound something like this.
Even if they could’ve played the recording. This is the section that got transcribed for the deposit copy. Beginning at 1:37.
Still, it’s long way from those similar-sounding guitar intros.
If the “four corners” is the deposit copy, there’s not much left to argue. You could get out your red pen and circle notes, but that upper clef in the deposit copy and also in that section of the recording is a melody, and it’s not the Stairway melody.
So the plaintiffs argued access and the basslines.
So how do you argue the bassline when the bassline is a scale and scales are not protectable? The plaintiffs argued the similarity that neither song continues beyond the five consecutive scale tones to a sixth one. Jimmy Page was asked if it’s true that his progression, like Taurus, “avoids the E.”
They argued the heck out of access, presumably because they were invested in the inverse ratio rule.
At some point they argued “selection and arrangement,” the case law for which is computers and fish statues. You can select and arrange elements that are not your own, and the arrangement of those unprotectable elements becomes protectable. As with the particular way you might build a computer. But unless the music is a collage? That’s tough.
Still, the jury was inadequately instructed on “selection and arrangement” and the not guilty verdict was initially thrown out on appeal. Then that was thrown out and replaced by an en banc hearing by the ninth circuit.
I would’ve liked a different trial, here and in Blurred Lines.
Roughly, the Copyright Act of 1909 defined what a published song looked like at the time, and it wasn’t a recording. The Copyright Act of 1976 went into effect in 1978, and in sum, songs written before 1978 could only be submitted as sheet music.
Record players have been around since the 1940’s. That’s a lot of recorded music.
Why are finders of truth handcuffed by an inadequate law from over 100 years ago, interpreted here to mean that Randy California only owned the music that he included in the deposit copy of Taurus — the written notation plus what little else a musicologist might testify is implied by it — But not on the additional musical events and qualities that are on the recording of Taurus.
The law, not unreasonably asks, “Where would you have us draw the line?! If you’d written it down, we’d have protected it!”
I find this inadequate at best, lazy at worst.
Vernon Silver wrote an article for Bloomberg showing that by this logic, there’s lots of music; famous and instantly sing-along-able stuff that’s not protected by copyright.
The deposit copy of Stairway To Heaven does NOT appear in the deposit copy.
Essentially the entirety of Jazz History — improvised, recorded, lots of takes of the same song, none the same, recorded. Evidently not protectable.
I don’t think Stairway infringes on Taurus regardless.
I don’t have a strong opinion regarding whether Jimmy Page knowingly or unknowingly copied any or a lot of a song he heard by Spirit.
I do know that not much was settled here.
Meanwhile, let’s acknowledge that the defense can play the examples I did earlier on piano, emphasizing the “underlying composition” distinction away from the sound of Stairway To Heaven, but then bust out this, as Dr Ferrara did…
It occurred to me I could do this. This is the kind of stunt someone like me would pull in a courtroom