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Led Zeppelin has once again prevailed in a long-running copyright dispute over whether the U.K. rock band infringed Spirit’s “Taurus” to create “Stairway to Heaven.” On Monday, the Ninth Circuit Court of Appeals affirmed a trial court’s decision of no copyright infringement after a jury in 2016 handed Led Zeppelin a win. The decision comes after the appellate court voted to redo the trial only to have larger issues re-examined en banc, meaning before a wider panel of judges.
A 54-page decision (read here) plus concurrences will likely become a new standard in copyright infringement cases and may be presented to the Supreme Court. Among other aspects of the decision, the Ninth Circuit determines it was not in error that the jury didn’t get to hear the original “Taurus” sound recording at trial. Furthermore, the appeals court elects to ditch the “inverse ratio rule,” meaning the higher the degree of access to a work, the lower the bar for proving substantial similarity.
Michael Skidmore, the Trustee for deceased Spirit songwriter Randy Wolfe, sued the band in May 2014. Wolfe’s “Taurus” instrumental was authored before federal law covered sound recordings. Under the 1909 Copyright Act, authors obtained copyright by making deposits of their work with the U.S. Copyright Office. Before trial, the judge determined that this meant that only Wolfe’s sheet music was protected and that the jury shouldn’t hear unprotectable music elements in the sound recording.
In June 2019, a pair of Ninth Circuit judges decided that while the scope of protection for an unpublished musical work is defined by what was deposited with the Copyright Office, it was nevertheless an error to not allow the jury to hear the “Taurus” sound recording because it could have been used by the plaintiff to demonstrate Led Zeppelin’s access to the song. Additionally, the prior decision held that the jury was improperly instructed about unprotectable music elements and improperly instructed on originality.
Neither side was pleased with the appellate court’s initial conclusion. The heir of Wolfe (also known as Randy California) sought reconsideration on the determination that the scope of the song’s copyright was solely determined by what was deposited with the U.S. Copyright Office, while Led Zeppelin argued that the correction of any errors would have led to the same jury result. Once the Ninth Circuit decided to rehear the case, it gained importance because, among other things, it set different copyright standards for newer and older works and led to some arguing that only those with classical music training — i.e. could notate music — would gain the benefit of protection. Even the Trump administration weighed in on the dispute.
“The world of copyright protection for music changed dramatically during the twentieth century and those changes dictate our analysis here,” writes M. Margaret McKeown in the majority en banc opinion.
“Although Skidmore offers a host of reasons why adherence to the statute complicates proof in copyright cases, these arguments cannot overcome the statutory requirements,” continues the opinion.
McKeown breaks down the elements of copyright infringement, that being ownership of a valid copyright and unlawful appropriation. As for the latter element, in the absence of direct evidence of copying, plaintiffs can attempt to prove it circumstantially by showing a defendant had access to the work and there’s substantial similarities probative of copying.
One of Skidmore’s key arguments was that Led Zeppelin had access to “Taurus” given, among other things, the two bands traveled with each other in the late 1960s. The plaintiff wanted to go beyond showing tour dates. Skidmore wanted to play several recordings of Taurus during the testimony of Jimmy Page, claiming that observing Page listening to the recordings would have enabled the jury to evaluate his demeanor with respect to access. The judge saw that as too potentially prejudicial since the sound recordings weren’t protected and might confuse the jury’s similarity analysis. Nevertheless, “Taurus” was played to Page outside of the jury’s presence before he was questioned about it. A panel of Ninth Circuit judges agrees that approach was fine. The opinion also adds that the evidentiary question on access becomes moot once once considers how Page admitted in testimony that he owned a copy of the album that contained “Taurus.”
The decision also takes up the issue of jury instructions including Skidmore’s objection how the judge didn’t instruct on the inverse ratio rule. Again, since Led Zeppelin appears to have access, does that mean that Skidmore had a lower standard when it came to demonstrating substantial similarity?
The Ninth Circuit notes that other sister courts including Second, Fifth, Seventh and Eleventh have declined to adopt the inverse ratio rule while the Sixth Circuit has endorsed it. The Ninth Circuit itself has previously used the inverse ratio rule, although the application has been messy and inconsistent to say the least. McKeown acknowledges that.
“As a practical matter, the concept of ‘access’ is increasingly diluted in our digitally interconnected world,” states the opinion. “Access is often proved by the wide dissemination of the copyrighted work. Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand.”
McKeown then writes, “To the extent ‘access’ still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. Thus the rule benefits those with highly popular works, like The Office, which are also highly accessible. But nothing in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.”
“Finally, the inverse ratio rule improperly dictates how the jury should reach its decision,” adds the appellate judge. “The burden of proof in a civil case is preponderance of the evidence. Yet this judge-made rule could fittingly be called the ‘inverse burden rule.’ Although we are cautious in overruling precedent — as we should be — the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work. By rejecting the inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity.”
The rest of the opinion addresses originality (including whether just a few-note sequence can ever be protectable); Skidmore’s position that the jury should also have gotten an instruction on analyzing whether the two works shared similar selection and arrangement of unprotectable elements; and other aspects. Ultimately, the jury’s conclusion that the two works weren’t similar enough is honored.
“The trial and appeal process has been a long climb up the Stairway to Heaven,” finishes the majority opinion. “The parties and their counsel have acquitted themselves well in presenting complicated questions of copyright law. We affirm the judgment that Led Zeppelin’s ‘Stairway to Heaven’ did not infringe Spirit’s ‘Taurus.'”
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