It has been five years since the copyright infringement litigation over Led Zeppelin's 1971 hit song, "Stairway to Heaven," began. The song, which has made its writers, Jimmy Page and Robert Plant, millionaires, has one part that Randy Wolfe, a singer from another group, claims that he wrote. That part is the acoustic portion in the beginning of the song.
How much of a song must be original?
Therein lies the copyright issue. How extensive is copyright protection? Mr. Wolfe, who died in 1997, has claimed through the trustee of his estate that the first portion of 'Stairway" is a copy of his song, Taurus, which was written in 1968. At the original trial in 2016, Page and Plant prevailed. However, the Ninth Circuit Court of Appeals sent the case back for another trial because the jury instructions were not proper. Then, the Ninth Circuit intervened and ordered that the appeal be reheard en banc. An en banc appeal, which means that all 32 justices of the Ninth Circuit will hear the case is rare, and even more rare in a copyright case. Skidmore . Trust v. Led . Zeppelin, 905 F.3d . 1118 (9th Cir. 2018) and 925 F.3d 909 (9th Cir. 2019).
You can hear the song differences and . similarities in the following video.
Copyright attorneys agree that the court has probably taken up the appeal so that the law on copyrighted music can be settled. There is a great deal of confusion about what is copyright-protected in a song. Is a song that uses the same types of acoustics infringement or is copyright limited to the actual music and words of the song? Without that clarification, confusing jury instructions would remain a problem should the case be retried.
One of the additional aspects of the case is why the suit was brought more than 40 years after the popular song was released by Led Zeppelin. However, the U.S. Supreme Court has held that a delay in bringing a suit does not affect the copyright period. Also, an estate can bring an infringement suit for a decedent as long as the estate can prove that the person claiming infringement was aware of the infringement while alive. Mr. Wolfe had labeled "Stairway to Heaven" a "rip-off," to others while he was alive.
The Trump administration has filed a brief as an amicus curiae, or friend of the court, that supports the Led Zeppelin position which is that there must be virtually identical copying, not just a "sounds like." The brief used the phone-book analogy: The phone company does not enjoy a copyright on the names and numbers in the book, but it is entitled to copyright protection on how those numbers are laid out in the book. The Ninth Circuit is facing a question of "borrowing" vs. "copying."
There was evidence at the trial that Robert Plante had heard the song "Taurus" performed when Led Zeppelin and Spirit played the same concert in Denver. Skidmore v. Led Zeppelin, 2016 WL 1442481 (C.D. Cal. 2016).
The Ninth Circuit full court heard oral arguments on September 23, 2019, and it could take months for a decision. The music industry is watching because the "borrowing" and "sound-alike" cases such as those involving Katy Perry's "Dark Horse" and Robin Thicke's "Blurred Lines" have sent fear throughout the songwriting world.
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