(CN) – Led Zeppelin will not have to face a jury a second time to answer whether they lifted the opening riff to their rock epic “Stairway to Heaven” from another song after the en banc Ninth Circuit ruled Monday that the rock legends did not infringe the little-known song’s copyright.
“Stairway to Heaven” is a staple in the pantheon of rock and roll, but the question of whether the song’s opening was stolen from a Los Angeles prog-rock band has been the subject of protracted federal court proceedings. Led Zeppelin’s Jimmy Page begins the 8-minute epic with an acoustic arpeggio plucking that music journalist Michael Skidmore argued sounds like the opening to the 1968 song “Taurus” from the LA-based band Spirit. “Stairway to Heaven” was released in 1971.
Skidmore filed a copyright suit on behalf of Spirit’s late guitarist Randy California, born Randy Wolfe. In 2016 a federal jury in Los Angeles agreed that, while Robert Plant and Page likely heard “Taurus” before they wrote “Stairway,” Skidmore could not prove the two songs were extrinsically similar.
On appeal, Skidmore argued the jury was not allowed to hear any recordings to compare similarities. A Ninth Circuit panel agreed and remanded the case, but Led Zeppelin requested and was granted an en banc rehearing.
Writing for the majority, U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, says the 1909 Copyright Act controls because “Taurus” was registered in 1967, before the 1976 Copyright Act. Under the older law, courts and juries need not consider sound recordings, just Spirit’s deposit copy – one page of music notes.
While Skidmore suggested the deposit copy for “Taurus” extends beyond the sheet of music and becomes a reference point, McKeown said that would ignore the purpose of the deposit.
“The text is clear – for unpublished works, the author must deposit one complete copy of such work,” McKeown wrote for the majority. “The purpose of the deposit is to make a record of the claimed copyright, provide notice to third parties, and prevent confusion about the scope of the copyright.”
The deposit copy “defines the four corners” of the song’s copyright, McKeown wrote in the 54-page opinion.
Skidmore argued Page was a fan of Spirit before “Stairway to Heaven” was released, saw Spirit perform live and even had a copy of the band’s album. When Page testified at trial in 2016, the court allowed Skidmore to play Spirit’s music for Page outside the presence of the jury. While Skidmore argued the jury should have been able to watch Page for reaction, McKeown indicated it would have been a pointless exercise.
“There would have been very little, if any, probative value in watching Page’s reaction to listening to Taurus at the trial in 2016 to prove access to the song half a century ago,” she wrote.
In addition to arguing the court erred by not allowing the song to be played for the jury, Skidmore had also challenged the judge’s refusal to give the jury an inverse-ratio instruction – the theory that the stronger the evidence of access to a song, the less compelling the similarities between the two songs needs to be to prevail on a copyright infringement claim. While the Ninth Circuit has used the inverse ratio in other cases, other appellate courts have not.
McKeown said the Ninth Circuit would take this case as an opportunity to distance itself from the rule, which she noted is not part of copyright law, “defies logic and creates uncertainty for the courts and the parties.”
“As a practical matter, the concept of ‘access’ is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work,” McKeown wrote. “Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand.”
McKeown concluded: “The trial and appeal process has been a long climb up the Stairway to Heaven. The parties and their counsel have acquitted themselves well in presenting complicated questions of copyright law. We affirm the judgment that Led Zeppelin’s Stairway to Heaven did not infringe Spirit’s Taurus.”
Skidmore’s attorney Francis Malofiy said in an interview the issue should not have turned on the deposit copy.
“We could have had a 10-minute trial comparing these two songs,” Malofiy said. “It’s a big win for the multibillion-dollar music industry against the creatives.”
Malofiy said the main issue is whether the members of Led Zeppelin had access to the recording of “Taurus” and if they copied the song from something else.
Neither Plant, Page nor California could not read music, and none of them saw the deposit copy, said Malofiy, adding Skidmore plans to appeal to the U.S. Supreme Court.
“We’re not going to throw our sword down,” said Malofiy.
Partly dissenting, U.S. Circuit Judge Sandra Ikuta said the trial court did fail to give any instruction to the jury about the underlying theory that the combination of common musical elements can be protectable under copyright law “even if each individual element is too common on its own to be protected.”
“Stairway to Heaven” includes descending chromatic scale, arpeggios and other elements that Skidmore argues were found in “Taurus.” Without Skidmore’s requested instruction, Ikuta wrote, “the jury was deprived of the opportunity to consider the plaintiff’s central theory of the case, and the instructions given to the jury (to the effect that common musical elements were not protectable under copyright law) were misleading.”
The George W. Bush appointee added, “This error cut the heart out of Skidmore’s case.”
Emails to Skidmore’s attorney and Led Zeppelin’s attorney for comment were not immediately answered.