In an en banc decision, the Ninth Circuit rejected the high-profile copyright infringement lawsuit against Led Zeppelin, finding that the opening notes of “Stairway to Heaven” did not infringe the band Spirit’s 1967 song “Taurus.” Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. Mar. 9, 2020) (IP Update, Mar. 2020). In determining whether the two songs were substantially similar, the Ninth Circuit overruled 40 years of its own precedent, rejecting the “inverse ratio rule” (a rule that where evidence of access to an original musical work is strong, the burden of proof to show similarities between the original and the infringing work are mitigated, to give rise to an inference of copying), noting that the rule creates an unfair advantage for popular works by lowering the standard to almost zero.
The Ninth Circuit addressed the scope of protection between the 1909 and 1976 Copyright Act. “Taurus” was registered with the US Copyright Office as an unpublished musical composition in 1967, which made it subject to the Copyright Act of 1909. As such, the sweeping reforms of the Copyright Act of 1976, including the protection of sound recordings, were deemed inapplicable. Thus, the appellate court determined that the “one page deposit copy” of the “Taurus” sheet music that was lodged with the Copyright Office “defined the scope of the copyright at issue.” Under that framework, the Ninth Circuit concluded that it was not in error for the district court to limit the similarity analysis to what was written on the sheet music and to reject Skidmore’s argument to play sound recordings of “Taurus.”
Plaintiffs have petitioned for certiorari.
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A week later, the US District Court for the Central District of California relied on Skidmore in Gray et al. v. Perry et al., No. 2:15-cv-05642 (CD Cal. Mar. 16, 2020), to reverse a jury verdict holding that would have required Katy Perry and others to pay $2.8 million in damages for copyright infringement. Finding that musical elements that are “common or trite”—such as long-short-long rhythms, chord progressions, certain tempos, recurring vocal phrase, repeating hook phrases, alternating emphasis of strong and weak beats—and elements that are ubiquitous in popular music—like rhythms, chants, the use of horns—are not protectable. Citing Skidmore, the district court noted, “[t]hese building blocks belong in the public domain and cannot be exclusively appropriated by any particular author.”
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Two weeks later, the US District Court for the Southern District of New York in Griffin v. Sheeran, et al., No. 1:17-cv-05221 (SDNY Mar. 24, 2020), which had deferred proceedings until after the en banc Ninth Circuit issued its ruling in Skidmore, relied on Skidmore to limit the scope of a copyright claim against Ed Sheeran’s “Thinking Out Loud.” The New York court relied on the Ninth Circuit’s guidance as to whether jurors could be permitted to use the plaintiff’s audio recording in evaluating similarities between the two works. Based on the holding in Skidmore, the New York court determined that the scope of the plaintiff’s copyright is limited to what is contained in the deposit copy and has undergone the copyright process—thus, the elements of the sound recordings not included in the deposit copy are inadmissible.
