Led Zeppelin Prevails in Copyright Infringement Case: Now on Appeal in Ninth Circuit

By Lamis G. Eli, Esq. of Wilson Elser In May 2014, the Trust acting on behalf of the estate of Randy Wolfe (a/k/a Randy California) of the rock group Spirit filed a copyright infringement suit against Led Zeppelin related to the first chords in the bandaEUR(TM)s most famous song, aEURoeStairway to Heaven.aEUR? See Skidmore v. Led Zeppelin, 15-cv-03462, U.S. District Court, Central District of California (Los Angeles). The Trust brought the case against Led Zeppelin after a 2014 Supreme Court decision opened the door for a broader interpretation of the time frame to seek damages for copyright infringement under the U.S. Copyright Act. See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962 (2014). The Petrella decision limited the application of the defense of laches and permitted lawsuits to be brought involving older copyrighted works with more recent acts of infringement that fall within the statute of limitations pursuant to 17 U.S.C. ? 507(b). Hence, in the Skidmore case, despite the decades-old circulation of aEURoeStairway to Heaven,aEUR? the plaintiffs decided to bring suit against Led Zeppelin within three years after the release of a re-mastered version of the famous song. In Skidmore, the crux of the plaintiffsaEUR(TM) case was that Led Zeppelin (with Jimmy Page and Robert Plant as co-authors) allegedly stole the opening passage of aEURoeStairway to HeavenaEUR? from aEURoeTaurus,aEUR? an instrumental by Randy Wolfe that can be found on SpiritaEUR(TM)s 1968 debut album. The dispute largely concerned a brief musical passage 45 seconds into aEURoeTaurus.aEUR? It was alleged that the iconic opening guitar sequence of aEURoeStairway to HeavenaEUR? (which was released in 1971, three years after aEURoeTaurusaEUR?) was copied from aEURoeTaurus.aEUR? The Trust also sought an injunction against the release of any additional albums containing the song aEURoeStairway to HeavenaEUR? in an attempt to obtain a writing credit for Wolfe, who died in 1997. This case was not the first time Led Zeppelin had been accused of copying another artistaEUR(TM)s work. The TrustaEUR(TM)s lawsuit listed other songs for which Led Zeppelin had paid settlements over songwriting credits, including aEURoeThe Lemon Song,aEUR? aEURoeBabe IaEUR(TM)m Gonna Leave You,aEUR? aEURoeWhole Lotta Love,aEUR? and aEURoeDazed and Confused.aEUR? On April 11, 2016, Los Angeles District Judge Gary Klausner ruled that there were enough similarities between aEURoeTaurusaEUR? and aEURoeStairway to HeavenaEUR? for a jury to decide the claim. On June 23, 2016, following a trial, an eight-member panel jury unanimously found that the similarities between the songs did not amount to copyright infringement. The decision came one year after a jury (in a lawsuit filed in the Central District of California before Judge John A. Kronstadt) ruled that Robin ThickeaEUR(TM)s aEURoeBlurred LinesaEUR? (produced by Pharrell Williams) infringed Marvin GayeaEUR(TM)s aEURoeGot to Give It Up.aEUR? In the Blurred Lines case, Thicke and Williams were ordered to pay $7.4 million (reduced to $5.3 million) and ongoing royalties to GayeaEUR(TM)s family. The Blurred Lines decision is currently on appeal in the Ninth Circuit. The Trial Jurors in the Led Zeppelin case had to decide two issues: First, was it plausible that members of Led Zeppelin had sufficient opportunity (i.e., access) to hear aEURoeTaurusaEUR? before they wrote aEURoeStairway to HeavenaEUR?? Second, if so, were the opening chords of aEURoeStairway to HeavenaEUR? aEURoesubstantially similaraEUR? to aEURoeTaurusaEUR?? Issue 1: Access Led ZeppelinaEUR(TM)s guitarist, Jimmy Page, singer, Robert Plant, and bassist, John Paul Jones, all took the stand to testify about their recollections of Spirit and whether they attended Spirit performances, listened to Spirit music or recalled playing the same shows. The Led Zeppelin band members also were questioned by the plaintiffsaEUR(TM) counsel on how aEURoeStairway to HeavenaEUR? was created 45 years ago. The jurors sided with the plaintiffs on the issue of access, finding that Page and Plant would have been familiar with aEURoeTaurus.aEUR? Specifically, the jury relied on the evidence presented in court that (1) Page had the Spirit record in his collection of more than 10,000 records and CDs, (2) Spirit had appeared as an opening act for Led Zeppelin and (3) other members of Spirit testified to encounters with Led Zeppelin members. Issue 2: Substantial Similarity The jury next had to determine whether the famous opening to aEURoeStairway to HeavenaEUR? was substantially similar to the instrumental opening portion in aEURoeTaurus.aEUR? Both sides presented expert musicologists, who offered divergent opinions on the musical composition of aEURoeTaurus.aEUR? Defense experts testified that the two songs shared little in common other than a chord sequence that dates back 300 years. PlaintiffsaEUR(TM) experts said there were significant other likenesses, including the use of arpeggios, similar note combinations, pitch and note durations. However, the jury never heard the original recording of aEURoeTaurus,aEUR? notwithstanding its conclusion that Led Zeppelin had access to the recording. The original recording of aEURoeTaurusaEUR? was made prior to 1972, when sound recordings were not subject to federal copyright protection. The Sound Recording Act of 1971 (effective February 15, 1972) changed federal copyright law to include protection for sound recordings. Instead, jurors had to hear and rely on expert renditions of the sheet music (i.e., the underlying musical notes) for aEURoeTaurusaEUR? to assess and decide the issue of aEURoesubstantial similarityaEUR? to aEURoeStairway to Heaven.aEUR?

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