SAN FRANCISCO (CN) – The hauntingly spare opening to Led Zeppelin’s rock epic “Stairway to Heaven” and copyright law were on the minds of the en banc Ninth Circuit on Monday morning, which heard arguments on whether the British band lifted the chords from another group’s song and if that warranted a second trial.
The acoustic arpeggio plucking by guitarist Jimmy Page precedes an 8-minute song and, according to a federal lawsuit filed by music journalist Michael Skidmore, sounds like the opening to the 1968 song “Taurus” from the LA-based band Spirit. Skidmore filed the suit on behalf of late Spirit guitarist Randy California, born Randy Wolfe.
Led Zeppelin released “Stairway to Heaven” in 1971.
In 2016, a federal jury in Los Angeles agreed Led Zeppelin’s Robert Plant and Page likely heard “Taurus,” but Skidmore had not proven the two songs were extrinsically similar.
On appeal, Skidmore argued the judge in the case should have allowed the jury to hear the two songs. A Ninth Circuit panel agreed and remanded the case; Led Zeppelin requested and was granted an en banc rehearing.
On Monday, Skidmore’s attorney Francis Malofiy argued the jury had only been allowed to compare “Taurus” and “Stairway to Heaven” from deposit copy sheets, the music arrangements submitted to the U.S. Copyright Office.
U.S. Circuit Judge Sandra Ikuta asked if all the essential elements of “Taurus” were included in the deposit copy. Malofiy said the copy did include those essential elements, like the descending chromatic scale and key used by California.
“Some things are left out, like the rhythm and tempo,” said Malofiy, who practices with Francis Alexander in San Francisco. “But we know what those are because we know the piece of music at issue. It’s not like the deposit is completely foreign to the album recording; it’s just a bad transcription.”
Malofiy added Led Zeppelin would lose their case if a jury heard audio recordings of the two songs.
U.S. Circuit Judge Andrew Hurwitz said, “And you lose the case unless they do? One hundred times out of a hundred. When you listen to these two recordings, I don’t see how any juror could find them substantially similar even with expert testimony. So, you’ve got to get your sound recording in in order to win this case.”
U.S. Circuit Judge Paul Watford asked why Spirit or California did not include a sound recording as their deposit copy after the Copyright Act of 1976 was enacted.
“Your point is that the sound recording embodies such a more fulsome and richer version of the composition that it’s a different work in a lot of ways,” Watford said. “You could have avoided all of what we’ve just been debating for the last 20 minutes if your client simply used the sound recording as the deposit copy after the 1976 Act had been enacted.”
Malofiy said he didn’t think someone could expand the scope of copyright registration after the fact. Absent intent to defraud, the court would need to look at this new evidence, Malofiy said.
U.S. Circuit Judge McKeown asked, “In other words, if the law is the deposit copy is the four corners of copyright claim there is nothing else to retry. I understand that you disagree with that.”
Later McKeown asked Led Zeppelin’s attorney Peter Anderson if there were differences between the terms arrangement, combination, selection and how that was used by Skidmore’s argument.
“They have to be combined in an original fashion,” said Anderson. “Not any combination is going to create an original work.”
While Skidmore argued about uniqueness in his brief, Anderson said you can’t build on that claim with random bits and pieces, just like you can’t make a claim of copyright over the elements of a screenplay.
“There is no similarity between these two songs, but they both combine a scale, little pairs of notes that are in different melody and an eighth note rhythm,” said Anderson, noting the Ninth Circuit’s ruling in a case over similarities between a 1978 musical about an alien and Steven Spielberg’s 1982 movie “E.T. The Extra-Terrestrial.”
On rebuttal, Malofiy attempted to sing the famous John Williams score from the 1975 movie “Jaws.” U.S. Circuit Judge Jacqueline Nguyen asked if it was the two notes or the fact that they were repeated that made them unique.
Malofiy couldn’t answer. Instead he said it doesn’t matter how complicated the arrangements are, the creativity and originality of the music is what’s important.
Meanwhile, the federal government filed an amicus brief supporting Led Zeppelin’s claim arguing that “Taurus” should only be entitled to a “thin” protection. The court did not indicate when they would issue their ruling.