This article is written by Aditi Aggarwal, from Symbiosis Law School, Noida. The article discusses the case of Skidmore v. Led Zeppelin and the scope of copyright in composition under the Copyright Act, 1909 concerning the case. 

Introduction

The song ‘Stairway to Heaven’ was released in 1971 by the band Led Zeppelin and became known as “the greatest rock song of all time.” Since the release of the song, the band is estimated to have earned over $500 million. Robert Plant, guitarist Jimmy Page, bassist John Paul Jones, and late drummer John Bonham make up the British band. Interestingly, the crowd was “bored to tears” when the band first performed the eight-minute-long song at the Ulster Hall in Belfast, Northern Ireland.

The dispute over the copyright issue began in 2014 when Led Zeppelin was accused of plagiarising parts of the song’s opening riff from ‘Taurus’, a song by the American psychedelic band Spirit released in 1968.

Band frontman and ‘Taurus’ songwriter, the late Randy Wolfe passed away in the year 1997 and the suit was filed on the behalf of his estate by Skidmore many years later. When Wolfe was alive, he told a magazine, “…and the guys made millions of bucks on it and never said ‘thank you,’ never said, ‘can we pay you some money for it?’ It’s kind of a sore point with me.”

This six-year-long legal battle came to a final decision in the year 2020, when the US Supreme Court declined to consider the case, affirming the decision of an 11-judge panel of the Ninth Circuit Court of Appeals in Led Zeppelin’s favour.

Facts of the case

• Randy Wolfe, a guitarist in the band ‘Spirit’ wrote the instrumental song ‘Taurus’ in 1966 or 1967. After a few months, Spirit entered into a recording contract with him and released an album that included the song ‘Taurus’. He also got into an agreement with Hollenbeck Music Co. which was related to songwriting and composing.
• In the month of December of the same year, Wolfe got protection under the 1909 Copyright Act when Holenbock registered the copyright in the unpublished musical composition of ‘Taurus’, listing Wolfe as the author. As per the requisites for the registration under the Act in force at that time, the music sheet was put into a written form and deposited with the United States Copyright Office. That sheet is referred to as ‘Taurus’ deposit copy.’
• Around this time, the rock band Led Zeppelin was formed and its fourth album was released in the year 1971 and became famous by the name “Led Zeppelin IV.” Written by Robert Plant and Jimmy Page, the album contained a song named ‘Stairway to Heaven’. 
• Between the late 1960s and early 1970s, both the bands crossed paths and even performed at the same venue sometimes. Even though a cover of Spirit song ‘Fresh Garbage’ was performed by the other band, no direct evidence is there to support the fact that band members of Led Zeppelin ever heard Taurus being performed by Spirit or that both the bands toured together.
• Wolfe died in 1997 and seventeen years after his death and forty-three years after the release of the song Stairway to Heaven, a suit was filed by Skidmore on behalf of Wolf’s estate in May 2014 that alleged that Stairway to Heaven infringed the copyright of ‘Taurus’. 
• Further, since the Supreme Court, in the case of Petrella v. Metro-Goldwyn-Mayer, Inc. (2014), had already clarified the fact that in an ongoing copyright infringement case, where ‘laches’ cannot be taken as a defence, there is no scope of laches (In a civil dispute, the laches defence is a legal defence that can be used if an excessive period of time has passed since the incident happened) being used as a defence by the other party in the present case.
• Through the suit, Skidmore claimed that the Stairway to Heaven’s opening notes were substantially similar to the passage at the beginning of the ‘Taurus’ deposit copy, specifically the eight-measure passage that was played with a descending chromatic minor chord. Further, the portion that was claimed to be similar had a chromatic musical scale’s five descending notes.

The decision of the district court

There were prominently two issues in the case that were identified by the United States District Court for the Central District of California. The two issues were: 

• Access to Taurus by Led Zeppelin band members 
• Substantial similarity

While addressing the two concerns, the Court decided that the musical composition transcribed in the ‘Taurus’ deposit copy limited the scope of the copyright under the 1909 Act. In this regard, Led Zeppelin’s petition to exclude ‘Taurus’ sound recordings and expert testimony based on those recordings was allowed by the district court.

The jury decided in favour of Led Zeppelin after a five-day-long trial, finding that while Skidmore had a valid copyright to ‘Taurus’ and Led Zeppelin had access to ‘Taurus’, the two songs were not substantially similar.

Skidmore appealed against the decision, raising several issues. A three-judge panel of the Court of appeals initially reversed the trial court’s decision and remanded the matter for a fresh trial. However, it later granted rehearing of the case with a full bench.

Issues raised by Skidmore before the court of appeal

Instead of claiming substantial evidence, Skidmore focused on a limited number of issues:

1. ‘Taurus’ deposit copy being used to prove substantial similarity.
2. Sound recordings not being considered as evidence.
3. Failure of the jury to instruct the inverse ratio rule and regarding arrangement and selection. 
4. The decision of the jury that originality instructions given by the Court are sufficient.
5. Imposing overall time limits for the trial.
6. The full version of the ‘Taurus’ being played at the jury’s request.
7. Not excluding or sanctioning Dr. Ferrara (Led Zeppelin’s expert who claimed that the similarities that Skidmore is alleging Led Zeppelin of, are either random or involve unprotectable musical elements that are common).

Analysis by the Court

The 1909 Copyright Act

It was analyzed that under the Copyright Act of 1909, the requirement of formalities and procedures for getting the copyright protection was very specific as compared to the Copyright Act of 1967. 

Some of the features of that Act, as analysed by the Court are as follows:

• Registration for an unpublished musical composition could be acquired by depositing one complete copy of such work with a claim of copyright with the Copyright Office.
• The Act had no provision of distribution of sound recordings for publication, rather, publication of sheet music was required for the publication of musical compositions.
• Along with distribution, even depositing the sound recordings was not accepted and the work had to be converted into a written form or sheet music for it to be accepted by the Copyright Office for copyright registration.

Scope of the Act 

The Court had to figure out which Copyright Act (the Act of 1909 or 1976) applied to ‘Taurus’ before deciding whether the deposit copy controlled the scope of copyright infringement.

The Court analysed the fact that ‘Taurus’ was registered in 1967 which was the time when the Copyright Act of 1909 was in force and the Copyright Act of 1976 was adopted as a reform in the world of copyright. It was thus concluded that the 1909 Act controls the Taurus deposit copy and the scope of the copyright with ‘Taurus’ is defined by it. 

How the 1909 Act contradicts the Copyright Act of 1976

The 1976 Copyright Act significantly altered the copyright standards, stating that public distribution of a sound recording qualifies as a published musical composition. In other words, instead of sheet music, composers might submit a recording as the deposit copy for a musical work. The problem in the present case was that this legislation does not apply to compositions published before 1978, i.e., the effective date of the Act.

Scope of copyright defined by the Taurus deposit copy 

Archival nature of the deposit copy

The Court after establishing which Act would be applied to the particular case went on to hear the arguments of Skidmore. One of the arguments was that the Taurus deposit copy was not an element that defines the scope of the copyright, rather, it is more archival. However, the Court rejected the argument observing that it does not align with what is written in the statute. It was further observed that the argument was not aligning with the purpose of the Act, which requires a party registering for copyright protection to make a claim of it and to prevent ambiguity about the scope of the copyright along with providing notice to third parties.

Public policy

Another argument raised by Skidmore was related to public policy. He argued that if a limit would be set on the copyright protection relating to deposit copy and its express contents, then it would be problematic in a sense that many musicians could neither afford to have sheet music in written form nor read the music sheet on their own. 

The Court dismissed this argument also as it did not apply to the situation at hand, along with giving another reason that the song ‘Taurus’ was converted into a deposit copy by Wolfe himself.

Arriving at the conclusion

The Court concluded the particular issue by agreeing with the trial court’s analysis of the applicability of the 1909 Copyright Act and judging the scope of the ‘Taurus’ deposit copy.

Elements of copyright infringement 

The Court analysed that Skidmore is required to prove the following elements of copyright infringement :

1. That valid copyright is owned by him in ‘Taurus’.
2. That the protected aspects of the composition have been copied by Led Zeppelin.

For the first element, it was observed that the issue was not challenged in the Court of appeal and thus, is inadmissible. As far as the second element is concerned, the Court observed that it contains two separate components: unlawful appropriation and copying. 

Concerning the first component, it was observed that there was no direct evidence of copying, in the absence of which the plaintiff has the option to prove it “circumstantially”. As far as the second component is concerned, the hallmark of “unlawful appropriation” is that the works share substantial similarities. In the ninth circuit, a two-part test is used to determine whether the defendant’s work is substantially similar to the plaintiff’s copyrighted work or not.

The two-part test is explained as follows:

Extrinsic test: With the help of this test, particular elements of both the works that are expressive are identified and their objective similarities are compared. 

Intrinsic test: This test is conducted by testing the expression similarity from the view of a reasonable and ordinary observer, without any assistance from experts. 

Whether the two components of copyright infringement were met in this case 

Unlawful appropriation: the first component

During the trial, one of Skidmore’s key arguments was that Led Zeppelin members heard either performances or recordings of ‘Taurus’ before creating Stairway to Heaven, and thus had access for purposes of copying the music. To prove that point, Skidmore wanted to play several recordings of ‘Taurus’ during the testimony of Jimmy Page, claiming that listening to the recordings would have enabled the jury to evaluate Page’s (one of Led Zeppelin’s band members) demeanour with respect to access. Skidmore’s counsel explained that the recordings could be offered to prove access, even if the Court excluded them for proving substantial similarity. 

Even though the sound recordings were important to prove access, the district court concluded that Skidmore’s approach would be “too prejudicial for the jury” because it risked confusing access with substantial similarity. 

As a result, the Court ruled that the recordings were inadmissible under Federal Rule of Evidence 403. Instead, the Court allowed Skidmore’s counsel to play the tapes for Page outside of the jury’s presence and then ask him about them in front of the jury. In fact, this decision of the Court demonstrated a thorough knowledge of the differences between unlawful appropriation and copying.

After questioning, it was found that Page randomly admitted owing the fact that he had a copy of an album which contained ‘Taurus’ but he still denied having any knowledge of it. The jury found that both Page and Plant (another band member) “had access to the musical composition ‘Taurus’ before Stairway to Heaven was created.” 

Copying: the 2nd component

Once the jury made that finding, the remaining question was related to the substantial similarity of the works. The jury rejected the claim that “original parts of the musical composition ‘Taurus’ are extrinsically comparable to Stairway to Heaven.” The jury did not proceed to the intrinsic test since the extrinsic test was not satisfied. Even though the jury’s copyright analysis concluded with these findings, Skidmore continued to dispute numerous trial judgments.

The inverse ratio rule

What does the rule say

The Ninth Circuit adopted the inverse ratio rule in 1977. In a copyright infringement case, if a high degree of access to the allegedly infringed work is shown, the inverse ratio rule asserts that a lesser degree of similarity is necessary to establish infringement.

This criterion, however, has been criticised because having wider access to someone’s work does not always imply that it has been copied. As a result, because the jury is led to believe that a particular level of access always demonstrates copying, this rule might lead to incorrect verdicts. This rule was overturned in the ‘Stairway to Heaven’ case.

Why was the rule overturned 

Skidmore proposed the inverse ratio rule to the jury. The district court, however, decided against the proposition. This decision was challenged in the court of appeal and the decision was affirmed by the ninth circuit after stating that rule is not part of the Copyright Act. Further, it was observed that it leads to uncertainty for courts and parties and lacks logic. As a result, the rule was repealed, and prior cases to the contrary were overturned.

The final decision 

The case of Skidmore v. Led Zeppelin was indeed a long climb up the Stairway to Heaven. Both the parties along with their counsels well presented the complicated questions that arose under the copyright law. The judgment finally affirmed the trial court’s ruling and held that Led Zeppelin’s Stairway to Heaven did not infringe Spirit’s ‘Taurus’.

Conclusion

One cannot forego the fact that the purpose of copyright law is to protect the creation of original and new musical compositions. Courts should keep in mind this purpose while deciding on a case regarding copyright infringement. In this regard, it could be concluded that the case of Skidmore v. Led Zeppelin brings forward a couple of issues and acts as a barrier to promoting economic prosperity and creativity, particularly in the music industry.

References

1. http://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/09/16-56057.pdf 
2. https://heinonline.org/HOL/LandingPage?handle=hein.journals/urich55&div=34&id=&page=
3. https://spicyip.com/2021/01/the-inverse-ratio-rule-on-its-stairway-to-heaven.html
4. https://indianexpress.com/article/explained/explained-led-zeppelins-stairway-to-heaven-copyright-case-6716025/ 

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