Aaron Sarro*
Led Zeppelin is in the spotlight once again thanks to its 1971 megahit Stairway to Heaven; however, this time the legendary band finds itself in the courtroom defending the song’s true origin, rather than performing it on stage. Ben Sisario, Original or Copied? ‘Stairway to Heaven’ Is Back in Court, N.Y. Times (Sept. 22, 2019), https://www.nytimes.com/2019/09/22/business/media/stairway-to-heaven-copyright-appeal.html. Stairway to Heaven is one of the most famous songs in rock and roll history and is now at the center of a legal controversy that will potentially change how courts analyze copyright infringement claims as applied to music. Id.
The legal controversy began in 2014 when Michael Skidmore, as trustee for the estate of Randy Wolfe, lead guitarist of the band Spirit, filed a copyright infringement suit alleging that the first two minutes of Led Zeppelin’s Stairway to Heaven copied Wolfe’s 1968 song Taurus. Id. In 2016, a California jury ruled in favor of Led Zeppelin, finding that the two songs were not substantially similar and therefore did not constitute copyright infringement. Id. However, in September of 2018, the U.S. Court of Appeals for the Ninth Circuit held that the trial judge gave erroneous jury instructions and ordered a new trial. Skidmore v. Led Zeppelin, 905 F.3d 1116, 1137 (9th Cir. 2018). Subsequently, and in true rock and roll fashion, the Ninth Circuit ultimately decided to perform an encore and ordered the case to be heard en banc. Skidmore v. Zeppelin, 925 F.3d 999, 1000 (9th Cir. 2019). This decision caught the attention of the recording industry due to its long struggle with ambiguous copyright laws, and the belief that this decision will finally provide clarification on the legal standard’s applicable to copyright infringement. Amy X. Wang & Jon Blistein, All You Need to Know About Led Zeppelin’s ‘Stairway to Heaven’ Case, Rolling Stone (Sept. 24, 2019, 6:04 PM), https://www.rollingstone.com/music/music-news/led-zeppelin-stairway-to-heaven-appeal-retrial-889336/.
I. A Brief History of the Copyright Infringement Lawsuit in Music:
There is no black and white rule to determine what constitutes copyright infringement in music; no formula or guideline exists to determine how many notes, melodies, or chord progressions must be copied, and to what degree, to constitute infringement. Nancy Coleman, Katy Perry’s Copyright Case May Sound Familiar to These Stars, N.Y. Times (July 31, 2019), https://www.nytimes.com/2019/07/31/arts/music/katy-perry-christian-rap-copyright.html. Instead, a jury is typically instructed to determine whether two works are “substantially similar,” with their verdict often favoring whichever party hired the more persuasive expert musicologist. Coleman, supra. The byproduct of this unclear standard has resulted in unpredictable trial results, which, until recently, incentivized parties to settle long before facing a jury. Id.
Despite this history of pre-trial settlements, lawsuits similar to the Zeppelin case have begun to go to trial more frequently. Coleman, supra. For instance, a lawsuit that involved Robin Thicke’s 2013 hit Blurred Lines resulted in a jury verdict that Thicke was liable for infringing Marvin Gaye’s 1977 song Got to Give it Up. Coleman, supra. More recently, a jury found Katy Perry had committed copyright infringement for her song Dark Horse. Coleman, supra. This recent increase of high-profile copyright infringement cases going to trial has emphasized the various flaws and shortcomings of the current legal standard, and in turn, has left many in anticipation of the Ninth Circuit en banc decision. Wang & Blistein, supra.
II. Determining Copyright Infringement—the Legal Standard
When applied to music, copyright infringement claims consist of two elements that the plaintiff must show: (1) they own a copyright to the allegedly infringed work; and (2) that the defendant copied elements of that work, which were copyright protected. Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004). Generally, the second element is met by either providing direct evidence of copying (which is rare) or by demonstrating that the defendant had access to the copyrighted work and that the work in question is substantially similar. Id. at 845. Substantial similarity involves a two-part analysis—an extrinsic test and intrinsic test. Id. The extrinsic test asks “whether two works share a similarity of ideas and expression as measured by external, objective criteria.” Id. (citing Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)). This test requires an analytical breakdown and comparison of the copyright protected elements, often by use of expert testimony. Id. (quoting Three Boys Music Corp. v. Bolton, 212 F.3d 447, 485 (9th Cir. 2000)). If the extrinsic test is satisfied, the intrinsic test is left solely for the jury, which asks whether an ordinary, reasonable person would find the works substantially similar. Id. Concurrently, the copying standard operates on an inverse sliding scale meaning that the more evidence of access that is demonstrated, the less evidence of substantial similarity is required and vice versa. Williams v. Gaye, 885 F.3d 1150, 1163 (9th Cir. 2018).
Finally, an important caveat to the copyright infringement standard, and principal contributor to its unpredictability, is the scope of the substantial similarity inquiry, which is limited to the protected aspects of the work. Swirsky, 376 F.3d at 845. Congress did not extend copyright protections to sound recordings until the Copyright Act of 1976, which became effective on January 1, 1978. Williams, 885 F.3d at 1165. Thus, any works released prior to the 1976 Act’s effective date are subject to the Copyright Act of 1909, which only offers copyright protection for the physical sheet music. Id.
III. The Present Case
Michael Skidmore, as trustee of the Randy Craig Wolfe Estate, filed the present copyright infringement suit in May of 2014 against Led Zeppelin, its remaining members, and its associated recording companies. Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018). Skidmore alleged that the two-minute guitar introduction to Stairway to Heaven copied protected aspects of Wolfe’s song, Taurus. Id. Both songs were released in the late 1960s and early 1970s when Led Zeppelin and Wolfe’s band, Spirit, performed at several of the same festivals. Id. at 1122. While there was conflicting evidence as to the degree of interaction between the bands, it was demonstrated that Led Zeppelin members Robert Plant and Jimmy Page had access to Taurus. Id. Prior to trial, both parties moved for summary judgment, but the court denied their motions because Skidmore’s copyright infringement claim presented a triable issue. Id. at 1123. However, the court found that Taurus is governed by the Copyright Act of 1909 because it was released in 1968, and therefore, Skidmore’s admissible evidence was limited to the physical sheet music of the recording to prove his claim. Id. Following the five-day trial in 2016, the jury returned a verdict in favor of Led Zeppelin. Id. at 1124. The jury found that Skidmore owned the copyright to Taurus, and that Led Zeppelin had access to the song. Id. However, applying the extrinsic test, the jury found that the two songs are not substantially similar. Id.
On appeal to U.S. Court of Appeals for the Ninth Circuit, a three-judge panel held that the trial court abused its discretion by not informing the jury that an arrangement and selection of musical elements, not subject to protection individually, could be protected as a group. Id. at 1126, 1136. This failure resulted in reversible error. Id. at 1136. In addition, the court found error regarding the jury instructions on originality. Id. at 112829. Specifically, the Ninth Circuit found the trial court erroneously instructed the jury that certain types of short musical scales were not copyright protectable, and that it erred by failing to clarify that the original, protected element of a work need not be entirely new or novel. Id. Accordingly, the Ninth Circuit remanded the case to the trial court and ordered a new trial. Id. at 1137.
The last major shift in the Stairway to Heaven case came when the Ninth Circuit, by majority vote, decided to hold off on its decision to remand and rather have all eleven judges rehear the case en banc. Sisario, supra. This shift made waves throughout the recording industry, leaving many under the impression that the court will not only resolve the issue at hand but also take the opportunity to address ambiguities in the copyright infringement standard as a whole. Wang & Blistein, supra. Unsurprisingly, one class paying staunch attention to the upcoming decision is the musicians, a group of whom made their stance known in an amicus brief filed with the Ninth Circuit. Brief of Amici Curiae 123 Songwriters, Composers, et al., In Support of Defendants/Appellees at En Banc Rehearing, Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018) (No. 16-56057 & 16-56287). The brief, which was signed by more than one hundred artists, strongly urges the court to find against Skidmore, warning that a more stringent copyright infringement standard “would likely stifle the creativity of [the musicians] and other present and future songwriters, and will adversely impact the entire music industry in general.” Id. at 2. Either way, arguments were heard by a full Ninth Circuit bench in September of 2019, and with the court’s decision expected to arrive at the start of 2020, those waiting will soon find out exactly how far the court is willing to go in addressing the law’s current insufficiencies. Sisario, supra.
*Aaron Sarro is a second-year law student at the University of Baltimore, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. This summer, Aaron interned for the Hon. Karen C. Friedman in the Circuit Court for Baltimore City and currently works as a law clerk for the Law Office of Hyatt & Goldbloom, LLC.
University of Baltimore Law Review 