5:56pm PT by Ashley Cullins
A "Stairway to Heaven" Appeal Would be a Fruitless Climb, Attorneys Say
Rock 'n' roll history remains intact: Jimmy Page and Robert Plant are still the only writers credited with Led Zeppelin's iconic "Stairway to Heaven," and top music lawyers aren't surprised that a jury on Thursday cleared them of a copyright infringement claim.
It's a case nearly half a century in the making, and it may not be over yet. Plaintiff's attorney Francis Malofiy says he lost his case on a technicality and indicated he may appeal the verdict. Malofiy says it's unfair the jury was unable to listen to the sound recording of Spirit's 1968 instrumental "Taurus" and instead were limited to hearing an expert performance of the registered sheet music.
Litigator Robert Jacobs says Malofiy would likely lose on appeal, but that probably won't stop him from trying.
"Malofiy being Malofiy, he’s going to appeal it," Jacobs says. "The law is well settled that you’re stuck with what the Copyright Office got. That’s just the way it is."
Overturning a jury verdict is an uphill battle, and intellectual property attorney J. Michael Keyes says this would be an especially steep one.
“I wouldn’t be all that jazzed about appealing on that basis if I were in the plaintiff’s shoes,” Keyes says. “You’d essentially be challenging an evidentiary motion. That’s going to be an abuse of discretion standard. That makes it difficult right off the bat.”
Says music litigator William Hochberg: "I think it would be a waste of time and money. I would suggest that they think long and hard about whether they really want to go forward with an appeal."
Hochberg says a recent U.S. Supreme Court ruling could make this case a "stairway to hell" for Michael Skidmore, the trustee who sued on behalf of late Spirit songwriter Randy Wolfe's estate. In Kirtsaeng v. John Wiley & Sons, Inc., the high court held that misconduct by an attorney is a valid basis for a fee award even if the copyright claim isn't frivolous. Given Malofiy triggered more than 100 sustained objections and multiple verbal lashings from U.S. District Judge R. Gary Klausner, Hochberg thinks this case might qualify and could potentially stop others from pursuing claims.
"I think would-be plaintiffs basing their claims on music they released decades ago will scratch their heads pretty hard before they come into court, especially in light of having to pay not only their own attorneys fees but also the defense's attorneys fees," he says.
Skidmore testified that he brought this lawsuit as a "labor of love" to continue Wolfe's legacy. In a way, despite the loss, he may have accomplished his mission.
"I’m sure there were far more YouTube hits on 'Taurus' than ever before," says music attorney James Sammataro.
The eight jurors unanimously found that while Page and Plant had access to the song they're accused of copying, the two works don't share copyrightable elements that are substantially similar.
"For a band that has been dogged by claims of copyright claims for decades, this is going to reduce their six other settlements to a footnote," Sammataro says of Led Zeppelin. "This is a win for their artistic integrity."
It's also a win for musicians who rely on building blocks, such as the descending chord progressions at issue in this case. Music litigator Christine Lepera, who represented Timbaland in his copyright infringement suit over "Big Pimpin,'" says expert testimony about prior art is key in cases like this. After all, neither Page nor Wolfe invented the minor-line cliché that's present in their songs. Similar expression can be found in works dating back to the 17th century.
“Just because things are similar it doesn’t mean it’s the result of copying,” Lepera says. “When a jury understands that you can’t monopolize certain common elements in music, that’s an important point to be driven home.”
Attorneys also say this decision rights a skewed legal landscape following the controversial outcome of the "Blurred Lines" trial. In March 2015, a jury found Pharrell Williams and Robin Thicke's song infringed on Marvin Gaye's "Got to Give it Up." Gaye's heirs were awarded millions in damages and a share of the track's future royalties.
"Many of us thought that the 'Blurred Lines' case was a travesty," Hochberg says. "This verdict restores faith in our judicial system."
While "Blurred Lines" has weighed heavily on the music industry, it was a copyright case over the film Raging Bull that allowed Skidmore to bring a lawsuit four decades after the claimed infringement. In that case, the Supreme Court held that the equitable defense of laches doesn't preclude claims brought within the three-year statute of limitations.
Skidmore was able to sue because Led Zeppelin issued a re-release of "Stairway to Heaven" in 2012. Had the group lost this case, it could have opened the floodgates of lawsuits against legacy artists who re-release albums, but Hochberg says the band's win may stave off similar suits.
"The combination of Petrella and 'Blurred Lines' seems to be creating a Gold Rush era for plaintiffs and their attorneys trying to hit paydirt with sometimes specious copyright infringement claims," Hochberg says. "This decision will staunch the flow of those kinds of cases."