This morning in a Los Angeles federal court, a unanimous jury exonerated British rockers Jimmy Page and Robert Plant—two members of the storied Led Zeppelin rock band—from claims of copyright infringement over the iconic 1970s rock anthem “Stairway to Heaven.” The named plaintiff was the “estate” of Randy Wolfe, the former front man of a relatively-obscure rock band by the name of “Spirit.” Wolfe wrote the song “Taurus” that was performed by Spirit in the late 1960s and he claimed (or, rather, his estate claimed) that the opening guitar riff of Stairway copied Taurus. During the 6 day trial, the jury heard testimony from the Zeppelin legends themselves, as well as musicologists as to the various similarities—or dissimilarities—between the two songs. The jury ultimately sided with Zeppelin and found the works were not substantially similar.
The jury’s verdict may have several noteworthy implications for current music copyright cases (such as those pending against Justin Bieber and Ed Sheeran) and future ones, too. Although teasing out exactly what swayed the jury is a bit like reading tea leaves, here are some observations:
- A music copyright plaintiff should think carefully about whether the “amount” of alleged infringement is significant enough to pursue (especially through a full-blown jury trial). The amount of alleged similarity in this case was essentially a five-note “baseline,” and the jury’s verdict may signal that such a relatively small degree of alleged similarity may not be worth the paper it’s pleaded on.
- A music copyright plaintiff should consider whether the alleged “similarity” is due to copying or, rather, whether the similarity may be due to common elements that exist in the world of music. Just as an author cannot claim copyright protection in “stock” plot elements (i.e., “it was a cold, dark stormy night”), a musician cannot protect “stock” music elements either (i.e., a “baseline” that has been used in scores of musical compositions). There certainly was loads of evidence that the baseline at issue appeared in many other compositions and songs, including “My Funny Valentine” from the 1930s and “Chim-Chim Cher-ee” from the Mary Poppins musical of the mid-1960s.
- While it may seem obvious, careful consideration should be given to what the protected work is and what it will be compared to before a jury. The internet has been abuzz about the alleged guitar riff similarities between the sound recording of Taurus and the sound recording of Stairway. And if you listen very hard, the tune will come to you at last. But the jury did not hear that comparison. Instead they heard a piano version of Taurus. Why? Because the sheet music version of Taurus is what was registered with the U.S. Copyright Office. It may have been too much of a stretch for the jury to appreciate any similarities between a rather sedate piano composition and the soaring, electric sound recording of one of the rock genre’s greatest hits of all time.
- Finally, a significant delay in pursuing one’s rights may hit a sour note with the jury. The plaintiff’s work was written back in the late 1960s. Stairway was written back in the early 1970s. The multiple-decades delay in pursuing this case—especially given that the plaintiff who wrote the song has already ascended his own stairway—may have been too much for the plaintiff to overcome. The jury may have seen the plaintiff’s estate as trying to cash in on “all that glitters is gold.”
So, as we wind on down the road, it makes me wonder if we will see an appeal to the 9th Circuit. Ooh, it really makes me wonder….