Randy Wolfe asserted a copyright infringement lawsuit in California federal court alleging that Led Zeppelin’s 70s hit ‘Stairway to Heaven’ infringes his song ‘Taurus’ by copying a passage from it. The lawsuit was originally dismissed by a jury verdict finding that although Led Zeppelin had access to Taurus, the two songs were not sufficiently similar to constitute infringement. The jury found that the only similarity between the songs is the core, repeated A-minor descending chromatic bass line structure that marks the first two minutes of each song. Based on the court’s instructions, the jury found the similarity insufficient to constitute infringement.

The plaintiff appealed and a Ninth Circuit panel found that the trial court erred in leading the jury to incorrectly believe that the plaintiff’s original selection and arrangement of the two basic and conventional musical elements abundant in the music industry – an A-minor chord and a descending chromatic scale – are not copyrightable. But before the case was remanded for retrial, the Ninth Circuit ordered an en banc (full panel) rehearing of the appeal.

The U.S. Copyright Office’s supported the dismissal of the lawsuit in favor of defendant Led Zeppelin. The Copyright Office’s arguments are based on the premise that “expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law”. According to the Copyright Office, “this means that standard elements such as arpeggios (i.e., notes of a chord played in sequence) or chromatic scales can never be independently protectable under copyright law”. Separately, the Copyright Office also emphasizes that “original selection and arrangement of otherwise uncopyrightable components may be protectable”.

Taking the two principles together, the Copyright Office concludes that “if the selection and arrangement of a small number of unprotectable elements is sufficiently original to be copyrightable, the protection for that particular combination is generally regarded as ‘thin’”. Per the Copyright Office, this means that only virtually identical copying of such selection and arrangement is prohibited.

The Copyright Office asserts that because the passages of Stairway to Heaven and Taurus are not virtually identical, there is no actionable copyright infringement and the district court’s jury verdict finding no infringement should be affirmed.

CLICK HERE to read the U.S. Copyright Office’s Amicus Curiae brief.

This article was published in the Internet, Cyber and Copyright Group’s August 2019 Newsletter.