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A California federal judge is letting the heirs of Spirit guitarist Randy Wolfe take a huge step forward in a lawsuit that alleges Led Zeppelin’s “Stairway to Heaven” derives from a 1968 instrumental titled “Taurus.” While a potential trial set for May marks a remarkable development, it’s too soon to rewrite the chapter devoted to the “falsification of rock ‘n’ roll history.”
In an order denying defendants’ summary judgment motion, U.S. District Judge R. Gary Klausner decides there is a triable issue of fact regarding access — did Jimmy Page never really see Spirit live? — and that the Randy Craig Wolfe Trust demonstrated enough that the issue of substantial similarity should proceed to the jury.
However — and we’re not qualifying the outcome to take anything away from the plaintiff — there’s bad news for the plaintiff plus looming hurdles scattered throughout Klausner’s decision.
For starters, the judge has decided to reject a right of attribution claim under the Supreme Court’s Dastar holding (background here), which is going to make it tough for Wolfe to be credited with co-creating “Stairway to Heaven.” If this case settles, and that’s a possibility, there could be recourse there, but this is mostly about money.
Speaking of money, Klausner has decided that any potential recovery of damages should be reduced by 50 percent because the plaintiff is suing as a beneficial owner of rights flowing from Wolfe’s songwriter agreement that limited him this way. What’s more, although the judge points to the Supreme Court’s recent decision involving Raging Bull to hold that the 40-year delay in bringing the lawsuit doesn’t bar the copyright claim at large, the judge writes that he’s “sympathetic” to defendants and that if the jury decides to punish Led Zeppelin, “Defendants may renew their request to reduce profits in an amount commensurate with the delay, and the Court will consider the issue again at that time.”
Led Zeppelin couldn’t get a judge to rule that Wolfe’s press interviews should bar the lawsuit. In motion papers, they pointed to one time that Wolfe commented it was “fine” that “Taurus” was used and another where he said, “I’ll let them have the beginning of ‘Taurus’ for their song without a lawsuit.”
The judge won’t let that kill the lawsuit at this point, noting there could be evidence supporting the idea that Wolfe indeed “felt cheated by Led Zeppelin and was merely trying to save face and make light of a bad situation.” Then again, he’s hardly stopping the defendants from making their abandonment argument at trial.
As for another defense — that thanks to Wolfe’s recording and songwriting contracts, “Taurus” was a “work for hire,” meaning Wolfe himself never enjoyed copyright to his song — that’s still live, too. The judge says that copyright registration certificates don’t establish what’s what, and that the song might have been created before contracts were signed, but that will be something else for the jury to decide.
And if the plaintiff can get past the contention that Wolfe gave up his song, just exactly will the jury hear?
Believe it or not, it might not actually be “Taurus” itself — which, the plaintiffs presumably believe, is the best evidence of plagiarism. Or at least not the sound recording. Like the “Blurred Lines” copyright case, this one is bedeviled by the fact that the copyright ties to the composition, not the sound recording. The judge hasn’t yet made any ruling about what evidence will be heard by the jury, but there are some good signs for Led Zeppelin.
The plaintiff argued that his copyright wasn’t limited to the music sheet deposited with the Copyright Office, but the judge responds, “The Ninth Circuit did not suggest that a copyright claimant may rely on additional elements in a sound recording to prove infringement of an underlying musical composition. Instead, the court merely reiterated the established proposition that an incomplete deposit copy of sheet music does not invalidate a copyright or strip the court of jurisdiction.”
That doesn’t necessarily mean that the jury won’t hear “Taurus,” but the judge also adds that to the extent that experts relied upon performance elements in the sound recording of “Taurus,” “such features will be disregarded by this Court.”
As mentioned above, the trial is set for May. On the other hand, the “Blurred Lines” case is now going up on appeal to the 9th Circuit and may address a lot of the evidentiary issues that are likely to be coming up in the next month. The ruling won’t come in time. Or will it? Might Led Zeppelin ask for a pause to let the appeals court address this issue? Only time will tell. The case is 40 years in the making, so it’s hard to object over any further delay.
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