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In less than a month’s time, Led Zeppelin is set to defend itself at trial from accusations of ripping off the 1968 Randy California instrumental “Taurus” to create the iconic song “Stairway to Heaven.” With time ticking toward a June 14 trial in a California federal courthouse, the plaintiff is demanding that a judge order bandmembers Jimmy Page and Robert Plant show up to testify.
On Tuesday, plaintiff’s attorney Francis Malofiy brought a motion to compel attendance with the penalty for a no-show being a default and the jury being instructed to draw a negative inference from their failure to appear. According to Malofiy, Page and Plant’s “refusal to specify if they will appear is causing havoc.”
Page and Plant may indeed be showing up voluntarily anyway.
In an email to Malofiy sent on May 6, Led Zeppelin’s attorneys wrote, “We have previously made it clear that Messrs. Page and Plant will attend the trial, but with them coming from England we cannot guarantee the day they will arrive.”
That’s not good enough for Molofiy, who represents the Trustee who manages the estate of Randy Wolfe (who performed as Randy California). He suggests the defendants “want to dictate the court’s schedule, completely disregarding the difficulties in presenting multiple fact and expert witnesses in a narrow band of time of approximately six hours. The lack of common courtesy from defense counsel is, frankly, astonishing.”
The plaintiff is arguing that Page and Plant are not outside the judge’s power to compel attendance since they consented to jurisdiction when they had the lawsuit originally filed in Pennsylvania moved to California. Plus, with a list of tour dates by Page and Plant in California in recent years, Malofiy stresses to the judge that they regularly do business in the state.
At the June 14 trial, Malofiy will have 10 hours to mount a case that Led Zeppelin committed copyright infringement. How much of that time will be used on questioning Page and Plant on the witness stand versus playing the jury video excerpts of their depositions?
“Because Defendants and [Led Zeppelin bassist John Paul] Jones are not being clear whether they will attend, Plaintiff is being forced to be overly careful and designate more deposition testimony that he will need if they appear,” writes Malofiy in the motion. “This uncertainty is extremely costly as Plaintiff is also having to edit hours of video deposition testimony.”
The motion to compel attendance also is coming to cover a possible mistake by Malofiy.
Many observers recognize the similarity between “Taurus” and “Stairway to Heaven,” but that hardly makes the lawsuit a slam-dunk, thanks to the decision by U.S. District Judge R. Gary Klausner allowing the jury to decide whether Wolfe waived the right to object to copyright infringement, whether he might not have actually enjoyed copyright to “Taurus,” whether Page and Plant had access to the song and whether there was infringement of protectable elements. On that latter front, the judge has precluded recordings of “Taurus” that don’t express the copyrighted sheet music.
As such, the testimony from Page and Plant figure to be an important factor, but will Malofiy be able to use anything he got in depositions with them? The May 6 email from Led Zeppelin’s attorneys to Malofiy notes that he missed the deadline to provide marked transcripts of deposition testimony intended to be presented at trial.
Besides asking that the judge order Page and Plant to show up, Malofiy is now seeking an order that affirms he’s entitled to use deposition testimony over a potential objection.
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