Friday, September 27, 2019

Led Zeppelin’s ‘Stairway to Heaven’ Case Kicks Up Debate on Inspiration

Written by Amy X. Wang & Jon Blistein — Like “Stairway to Heaven” itself, the copyright lawsuit against the iconic Led Zeppelin song is winding, dramatic and complex. While the first case seemingly wrapped in 2016, with a judge ruling in favor of Led Zeppelin, earlier this year a three-judge panel invalidated the ruling due to process errors and poor jury instructions. That ruling set up a hearing Monday in San Francisco, where an 11-judge panel for U.S. Court of Appeals for the Ninth Circuit heard arguments from both sides of Michael Skidmore v. Led Zeppelin, upon which it will eventually make its ruling.

In the initial case that began in 2014, Michael Skidmore — a trustee representing the estate of Randy Wolfe, the guitarist of California band Spirit — accused Led Zeppelin’s Jimmy Page and Robert Plant of stealing the opening guitar riff of “Stairway” from Spirit’s 1968 instrumental track “Taurus.” In 2016, a court found Led Zeppelin not guilty of copyright infringement on the song. But in September 2018, a Ninth Circuit three-judge panel ruled unanimously that the original trial involved “erroneous jury instructions” — for instance, the district judge incorrectly told the jury that short musical sequences could never be copyrighted — and ordered a new trial.

On Monday, both sides made arguments to the appeals court, although much of the hearing was dominated by the lawyer for the Wolfe estate, Francis Malofiy. Per the San Francisco Chronicle, the crux of Malofiy’s testimony centered around his argument that the recorded versions of “Stairway to Heaven” and “Taurus” should be included as evidence and played at trial. During the initial trial, jurors had to base their decision on the sheet music for both songs (and excerpts played live in the courtroom by a guitarist) because both tracks were copyrighted under a 1909 law that only protects the sheet music dropped off at the U.S. Copyright Office. But more recent copyright legislation extends to the sound recording, while contemporary music copyright cases have hinged on recordings as well, most famously the 2015 one involving Robin Thicke’s “Blurred Lines” and Marvin Gaye’s “Got to Give It Up.”

Malofiy also argued that the decision to exclude the actual recordings in favor of the sheet music was misleading, in part because Jimmy Page doesn’t read music. “Why are we looking at this artificial analysis that never happened in the real world?” he said, per The Associated Press. “It’s wrong, it’s artificial, it’s imaginary. What we do know, and what we proved at trial, is that Jimmy Page has five of Spirit’s albums in his record collection.”

Many of the judges on the panel, however, were skeptical of Malofiy’s argument. “You’ve got to get your sound recording in to win, don’t you?” Judge Andrew D. Hurwitz said. “You lose the case unless you do. A hundred times out of a hundred.” When Judge Hurwitz asked Malofiy, “What work in your view is entitled to copyright protection?” the attorney replied, “I don’t think it’s the sound recording that’s copyrighted, I think it’s the composition embodied in the sound recording.”

The attorney for Led Zeppelin, Peter Anderson, brushed aside Malofiy’s argument about the recording as irrelevant. Instead, he argued there was no proof Zeppelin copied Spirit and that any common elements in “Taurus” that might have also appeared in “Stairway” were not protected by copyright law. He also returned the focus to the sheet music, saying, “At no point in this case did the plaintiff ever take the position that the deposit copy was in error.”

Led Zeppelin also received some support from a representative of the U.S. Department of Justice, which had filed an amicus brief last month in support of the previous judge’s ruling that copyrights of musical compositions prior to 1972 are only protected as sheet music. Daniel Tenny, an attorney for the government, said, “It’s clear that copyright owners were told … that all you’re getting protection for is what you deposited with us.”

Because the Zeppelin-Spirit case is now being reviewed by an appeals court, it’s garnered a lot more attention than it did the first time around — especially because several high-profile copyright battles have been waged in the music space in the time since, and because the appeals court’s ruling will likely resonate beyond the music industry alone.

“The issues have now been defined a little more sharply,” Wesley Lewis, an attorney at corporate law firm Haynes and Boone who specializes in copyright cases, tells Rolling Stone. The Ninth Court will not just decide whether Led Zeppelin stole the riff: It is also poised to give a new framework on the contentious debate over how, when, and why music can be protected under existing copyright law.

There’s also a chance that it could be kicked all the way up the U.S. Supreme Court, which would mark the first time the country’s highest court has ever grappled with the scope of copyright as it applies to music.

Malofiy told Rolling Stone last week that he believes the Department of Justice is “making a laughable argument” and music industry figures supporting Led Zeppelin are “trying to say that any current artist can steal anything anything from the past and change it ever so slightly, and now they can’t be sued.” (The Department of Justice could not be immediately reached for comment.)

A ruling is expected to be announced in 2020.

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