10:13am PT by Eriq Gardner
Will the 'Stairway to Heaven' Jury Hear About Jimmy Page's Drug Use and "Serial Plagiarism"?
With a few weeks to go before Led Zeppelin members stand trial for allegedly lifting a 1968 instrumental titled "Taurus" to create the iconic song "Stairway to Heaven," the parties in the copyright fight are arguing over whether the jury can hear about the drinking and drug use of Jimmy Page and Robert Plant back in the late 1960s.
Led Zeppelin has brought a motion to preclude such evidence, telling a judge there's no evidence to support the drug accusations and that an attorney for the Randy Craig Wolfe Trust (which counts itself as a beneficial owner of Spirit member Randy California's works) "also failed to disclose any medical or other expert to opine as to the effects of supposed drinking or drug use."
On Friday, the plaintiff filed opposition papers with the proposition that the "credibility" of Page and Plant is indeed material.
U.S. District Court judge R. Gary Klausner ruled in his April 8 summary judgment ruling that there was a triable issue of fact regarding access to "Taurus." In other words, did Plant and Page hear the Spirit song before creating "Stairway to Heaven"? Page has admitted that Spirit's album was in his record collection, but maintains there are many albums he's collected that he hasn't listened to. The defendants also admit that the two bands appeared at the same venue on the same day on multiple occasions, but assert there is no "chain of events" establishing that Led Zeppelin's members heard the Wolfe song.
So Francis Alexander Malofiy, attorney for the plaintiffs, submits that drugs and drinking are necessary to show that Page and Plant can't "accurately recall their interactions (or lack thereof) with Randy California," adding that "it is well-documented and generally known to the public that Page and Plant have had serious addictions to drugs and alcohol over the years." (Apparently, this came up in depositions, too, with Page and Plant acknowledging past drug and alcohol problems, but downplaying the "effects and pervasiveness.")
Another evidentiary quarrel involves whether the jury gets to hear word that Led Zeppelin copied works other than "Taurus." The defendants want to avoid prejudicing the jury by barring this testimony. "Allegations of prior claims and settlements also would mislead the jury into believing that past allegations of claims are admissible to prove copying in this instance, and distract from the juror’s actual task of determining whether copying occurred here," they argue.
In response, Malofiy writes that Page and Plant admitted in depositions to routinely taking other people's songs. Among the works that have come up include "Dazed and Confused" (allegedly derived from Jake Holmes), "Whole Lotta Love" (allegedly Willie Dixon by way of The Small Faces) and "Babe I'm Gonna Leave You" (allegedly Anne Bredon from a song sang by Joan Baez).
"There is no way any rational reasonable person listens to these songs and can conclude anything but that they were lifted, as Page and Plant admitted," states a legal brief. "There is no other band in rock history who has been compelled to change the writing credits on its songs so many times, as Plant admitted at his deposition."
Led Zeppelin's songwriting process was a big topic in depositions, and the plaintiffs say they are doing more than discussing settlements and character evidence.
"What Plaintiff seeks to disclose is the songwriting method used by Led Zeppelin that resulted in numerous occasions of Led Zeppelin having to change the credit for its songs," writes Malofiy. "First, Led Zeppelin’s serial plagiarism goes directly to how Led Zeppelin wrote songs and how Led Zeppelin wrote 'Stairway to Heaven.' This a basic, unavoidable factual dispute that underlies the entire case. The evidence that Plaintiff will primarily rely upon on are party admissions and musical comparisons."
Speaking of musical comparisons, despite countless news reports directing readers to compare the sound recordings of "Stairway to Heaven" with "Taurus" and making the suggestion this will be crucial at trial, it might not be exactly what the jury will be doing. As previously discussed, the "Taurus" copyright is limited to the music sheet deposited with the Copyright Office. Judge Klausner noted this in his summary judgment ruling.
In the recent "Blurred Lines" case, a judge wouldn't let a jury hear Marvin Gaye's original 1977 sound recording "Got to Give It Up." After Gaye's side raised a big fuss about this, the judge permitted a modified instrumental version to be played that stripped out uncopyrighted elements.
Led Zeppelin is now asking the judge to preclude the "Taurus" recordings that the plaintiff wishes to introduce at trial.
Malofiy seems to be spinning what happened during the "Blurred Lines" case, telling the judge, "A recent court, Pharrell Williams v. Bridgeport Music, considered this identical issue — whether sound recordings could be considered by experts and played at trial — and sided with Plaintiff’s position," adding that as long as his experts opine that the expression in the sound recording is represented in the sheet music, the sound recordings are admissible.
From the looks of the court papers, the Led Zeppelin defendants have provided its own recording of "Taurus" based on a 1967 transcription, and say it's fine to use that. But Malofiy wishes to play audio of the sound recording from the Spirit album plus various live performances. Led Zeppelin argues that doing this will be "substantially prejudicial" with no probative value because they don't reflect what's actually copyrighted, while Malofiy disagrees, saying it is evidence of substantial similarity. Further, he's arguing that a jury is entitled to hear the various versions of "Taurus" to establish the song is not a "work for hire" and belongs to California — which as we previously wrote, is not a given quite yet.