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The “Stairway to Heaven” trial — the one examining if Led Zeppelin lifted its famous song from Spirit’s 1967 instrumental “Taurus” — hasn’t yet made it to the chorus of a jury’s deliberations. However, on Monday, attorneys for bandmembers Jimmy Page and Robert Plant and Warner Music urged U.S. District Judge R. Gary Klausner to halt the proceedings now because the plaintiff hasn’t established the elements of copyright infringement.
The move comes after Michael Skidmore, the trustee who manages the estate of songwriter Randy Wolfe, rested his case after three days of testimony. The plaintiff, represented by attorney Francis Malofiy, played the two songs and tried to pin Page down on hearing “Taurus” before composing “Stairway to Heaven.” Led Zeppelin’s guitarist testified that he hadn’t heard “Taurus” until a few years ago and also refused to accept the two works are similar.
It’s now Led Zeppelin’s turn to present their own case, but before the trial possibly resumes on Tuesday, the judge is being asked to make a judgment as a matter of law.
In a motion made Monday, the defendants argue that copyright claims fail because the copyright registration of “Taurus” hasn’t been put into evidence, that the Wolfe Trustee does not own that copyright and also that the plaintiff has not presented admissible evidence of Led Zeppelin’s access to “Taurus” nor evidence of striking or substantial similarity between the musical compositions.
When Klausner decided to deny a summary judgment motion, he spelled out what would be triable issues.
“Although the parties’ pre-trial filings identified what plaintiff Michael Skidmore needed to prove to establish his claims, Skidmore failed to prove required elements of his claims for direct, contributory and vicarious copyright infringement,” state the defendants, being led by attorney Peter J. Anderson.
Anderson says it’s not enough that Skidmore only submitted at trial a claimed printout of a summary of the 1996 renewal registration. Where’s the 1967 copyright registration? And who really owns “Taurus”?
Pointing to Skidmore’s testimony about Wolfe’s songwriter’s agreement, the defendants argue that Wolfe “assigned his renewal rights to Hollenbeck [Music]” and thus Hollenbeck, not Skidmore, owns the composition. “Further, since Skidmore abandoned his prior beneficial ownership claim, he has no basis to sue and judgment is proper in defendants’ favor,” the papers add.
If Klausner gets past arguments of non-ownership of “Taurus,” the judge also will have to decide whether there’s enough evidence to let a jury decide the Wolfe song has been infringed. The crucial factor here is access — something that didn’t come up in the “Blurred Lines” copyright case because Marvin Gaye was so popular that Pharrell Williams and Robin Thicke conceded the issue.
Here, Led Zeppelin say that the witnesses testifying thus far — including Wolfe’s sister, Spirit’s bassist Mark Andes and one of Skidmore’s friends — haven’t told the jury they saw members of Led Zeppelin at a Spirit concert when “Taurus” was performed. The band adds, “And, while — nearly a half century later — Mr. Page found Spirit’s first album in his collection of 4,329 albums and 5,882 CDs, there is no evidence he had the album 45 years ago.”
The other arguments being tossed to the judge — no substantial similarity, failure to present evidence of actual damages or defendants’ profits — are probably ones that won’t end the case. But given that Klausner has made it a point of emphasis that the copyright at issue pertains to elements of the composition and not any of the sound recordings — who knows? If Led Zeppelin can’t bring a halt to the trial now, the band will not only make these arguments of non-ownership, a lack of access and insufficient similarity in the coming days directly to the jury, they are expected to bring musicologists and possibly Page and Plant to the witness stand to talk about how what’s claimed to have been stolen is generic and not protected by copyright law.
In a second development on Monday, Led Zeppelin’s lawyers have told the judge that Malofiy is committing ongoing misconduct that threatens to prejudice a fair trial. They say he has repeatedly sought to elicit testimony how the Wolfe Trust was formed for charitable purposes despite a pre-trial ruling precluding this as well as eliciting testimony from an economic expert about a 2008 agreement whereby Warner Music paid Page and Plant $60 million to exploit their catalogue for 10 years. Malofiy also is being accused of violating a protective order in pretrial motions as well as in comments to the press. They demand the judge do something about it.
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