Led Zeppelin Wins ‘Stairway to Heaven’ Copyright Battle

From Variety:

The U.S. Supreme Court on Monday declined to take up the long-running copyright battle over Led Zeppelin’s “Stairway to Heaven,” leaving in place a ruling that rejected infringement allegations over the 1971 song.

The justices denied a petition aimed at reviving the case, ending six years of litigation over claims that the song’s writers, Jimmy Page and Robert Plant, plagiarized the song’s iconic intro from the 1968 song “Taurus” by the group Spirit.

The decision follows a March victory for the group in which the 9th Circuit Court of Appeals upheld a jury verdict finding the song did not infringe on “Taurus.”

Journalist Michael Skidmore filed the suit in 2014, on behalf of the estate of Randy Wolfe, the late Spirit frontman. After losing at trial, Skidmore appealed to the 9th Circuit.

. . . .

The appeals court’s en banc ruling marked a win for the music industry, which had felt besieged by frivolous copyright suits since the “Blurred Lines” trial in 2015. The appeals court overturned the so-called “inverse ratio rule,” a standard that set a lower bar for similarity if plaintiffs could prove a higher level of access to the infringed work.

The 9th Circuit also made it harder to claim infringement based on a “selection and arrangement” of unprotectable musical elements. Finally, the ruling expressed skepticism about claims based on just a handful of notes.

Link to the rest at Variety

PG admits that the first little bit of each song do sound quite similar.

But, as the OP describes, these are only a “handful of notes” and examining what is really going on in the two introductory portions shows that there are some significant differences. Once past the intro, the two songs are much different.

Additionally this particular pattern of descending notes also appears in more than a few other musical pieces which predate the creation of both songs. That fact alone might indicate that the plaintiff’s copyright claims lack much strength.

PG writing “It was a dark and stormy night” doesn’t provide any substantial basis for PG claiming a copyright to the phrase. “It was a dark and stormy night in Des Moines” isn’t really much different.

Specifically, the court found that eight measures of the two songs were similar. However, Stairway to Heaven is much, much longer than eight measures and the plaintiff had only registered a copyright for a single page of sheet music.

Here is what the the copyright infringement claim was based upon, taken from the copyright filing made by the Plaintiff and included in the Court’s opinion:

Here’s a comparison between the original and the Led Zeppelin version, also from the court’s opinion:

The top two lines are from Taurus, the alleged copyright-protected original, and the bottom two lines are from the introduction to Stairway to Heaven.

The court opinion included the following portion of the testimony of a music expert hired by the the defendants:

Dr. Ferrara testified that the similarities claimed by Skidmore either involve unprotectable common musical elements or are random. For example, Dr. Ferrara explained that the similarity in the three two-note sequences is not musically significant because in each song the sequences were preceded and followed by different notes to form distinct melodies. He described the purported similarity based on these note sequences as akin to arguing that “crab” and “absent” are similar words because they both have the letter pair “ab.” He also testified that the similarity in the “pitch collection” is not musically meaningful because it is akin to arguing that the presence of the same letters in “senator” and “treason” renders the words similar in meaning.

PG notes that when a judge or panel of judges quote a principal expert witness for the defendant, the plaintiff may conclude that she/he/they will not be happy with the court’s decision.

In addition to almost everyone else, judges and lawyers commonly use analogies to describe something complex that is difficult to accurately describe in words. Courts issue their decisions using words and sentences, not musical compositions.

In this respect, Dr. Ferrara, the expert testifying on behalf of the defendants in the pull-quote, earned his almost-certainly large fee by providing analogies that even a tone-deaf judge could understand.

“Crab” and “absent” both contain the letters “ab” in sequence, but the entire words are completely different.

“Senator” and “treason” each contain exactly the same letters, but the order in which the letters appear in the two words is different and the meaning of the two words are not at all the same.

Perfectly lovely analogies that are far easier for 99% of law school graduates to understand than “descending notes of a chromatic musical scale” and “a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios.”

Here’s a video that includes recordings of the melodies created by the plaintiff and the allegedly infringing portion of the defendants’ song.

Since some visitors had problems with an embedded PDF PG included in a recent post, PG will link to a copy of the 9th Circuit Court of Appeals opinion which the US Supreme Court decided to let stand and decline to review.

The opinion is 73 pages long, so you will need to read it to understand the decision and the copyright principles involved. PG’s fluffy little summary is not an adequate substitute for reviewing the whole thing.

However, since you are not facing a final exam in copyright law, you can do whatever you like without receiving a bad grade.

Here’s the link to Skidmore vs. Led Zeppelin

9 thoughts on “Led Zeppelin Wins ‘Stairway to Heaven’ Copyright Battle”

  1. I’m glad to hear this. My ignorance of the legal aspects of US music copyright is profound, but this doesn’t stop me thinking the system lost its way at the time of the “Blurred Lines” verdict (and did so in a way that is bad for music – but what do I know I just listen to the stuff?)

  2. What is fascinating to me about this is that it represents a missed opportunity for the Supreme Court to resolve a circuit split… because in the Sixth Circuit, three notes is enough. Literally. See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). (Note to the unwary: The Sixth Circuit includes Nashville. Do you really need any further hints? How about that the 2Live Crew decision — Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) — also came out of the Sixth Circuit, and was just as wrong when initially decided?)

    I strongly suspect that the real reason that certiorari was denied (letting the Ninth Circuit’s decision stand) is that the Lead Balloons Led Zeppelin dispute turns on questions of evidence and admissibility at least as much as on doctrine. And if there’s one thing that this Court composed of exactly one Justice who has ever tried a case before a jury hates (Justice Sotomayor), it is second-guessing evidentiary rulings by trial judges… even when it agrees with them.

    N.B. I am specifically not saying that experience as a trial attorney or trial judge is a necessary prerequisite to sitting on a purely appellate court (like “general chemistry” is a prerequisite to “physical chemistry”). Rather the opposite; and I respect the reluctance to second-guess the trial judges. However, it’s their job, and they need to be more willing to do it.

    • Evidentiary rulings and findings of fact, right?
      Do they quietly pass the word that the judge never be cited or let near a major case?
      It might explain the post-ruling career of a certain prominent judge a couple decades past.

  3. I just noted a minor glitch in PG’s posting. The opinion under consideration is:

    Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc)

    which is a fully-paginated HTML rendering of the Ninth Circuit’s final (no, really, final) opinion in the matter.

    Final, that is, until the inevitable motions for attorneys’ fees get decided and then appealed.

    Old litigators never die. They just lose their final appeal. And Jarndice v. Jarndice (Dickens’ Bleak House) has nothing on any copyright case in which attorneys’ fees are also at issue…

  4. Reading this made me think of the Muppet Show with Gene Kelly. The running gag throughout the episode was trying to get Gene to sing “Singin’ in the Rain.” and he was sick and tired of it (“I’d do it at the drop of a hat.”). At the end they try to get him to do it, playing ‘vamps’ of the song including the opening notes… only Gene would then start singing a different song, as those used those notes, too.

    Hilarious, but also proves the point. There are only so many notes.

    https://youtu.be/2h4AKSWFxcU

    (Enjoy the link!)

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