LOS ANGELES (CN) – The Ninth Circuit on Friday revived an ongoing spat on claims the opening guitar riff in Led Zeppelin’s rock epic “Stairway to Heaven” was lifted from another band’s song.
The three-judge appellate panel vacated a jury’s verdict in favor of Led Zeppelin and ordered a new trial in part due to deficiencies in the jury instructions and because trial judge didn’t allow jurors to listen to the two songs in question.
Music journalist Michael Skidmore brought the lawsuit on behalf of the late guitarist Randy California, born Randy Wolfe, from the LA-based progressive rock group Spirit. Skidmore sued Led Zeppelin’s guitarist Jimmy Page, singer Robert Plant and the other members in federal court claiming they copied the 1968 song “Taurus,” written by Wolfe.
Led Zeppelin released their eight-minute rock epic “Stairway to Heaven” in 1971 but had opened for Spirit before that, according to Skidmore. Page even said he was a fan of Spirit’s music and Led Zeppelin covered one of the group’s songs in their early days.
But at trial, members of Led Zeppelin said they were not familiar with “Taurus” and did not remember playing with the band at several stateside shows.
In 2016, a federal jury in Los Angeles agreed Plant and Page heard the song “Taurus” and Skidmore had a valid copyright for the Spirit song, but found Skidmore hadn’t proven the songs were “extrinsically” similar.
On appeal, Skidmore argued the trial judge did not give the jury correct instructions to compare the elements of his copyright infringement claim. He argued allowing jurors to compare only exact notes from sheet music – rather than hearing sound recordings to the two songs – forced them to compare an artificial, inaccurate version of “Taurus” to “Stairway to Heaven.”
U.S. Circuit Judge Richard Paez, writing for the unanimous panel, said the lower court made multiple errors in the case. For one, the judge should not have excluded sound recordings.
“Here, the district court abused its discretion in finding that it would be unduly prejudicial for the jury to listen to the sound recordings in order to assess Page’s access to ‘Taurus,’ wrote Paez. “The district court acknowledged that the recordings were relevant to whether Page had access to ‘Taurus,’ as Page would have heard and allegedly copied a recording of ‘Taurus.’ The district court was concerned, however, that allowing the jury to hear the recordings would confuse them.”
In order to prove “unlawful appropriation,” there must be substantial similarities between Skidmore’s copyrighted work and “Stairway to Heaven.” The lower court should have used the extrinsic and intrinsic tests, where the protected parts of the work are compared, “breaking the works down into their constituent elements, and comparing those elements” to determine whether they are substantially similar,” wrote Paez, citing another Ninth Circuit copyright challenge involving Mariah Carey.
The second part of the test is whether an average music listener can find a “substantially similar” concept and feel between the two works of music. The jury in this case wasn’t given the chance to decide that, the panel found.
Furthermore, as Skidmore noted on appeal, playing “Taurus” during examination of Page while the jury watched – something the trial judge deemed too prejudicial to allow – limited “the probative value of observation,” according to Paez.
“Limiting the probative value of observation was not proper here, as the risk of unfair prejudice or jury confusion was relatively small and could have been reduced further with a proper admonition,” wrote Paez.
The panel did not agree with Skidmore’s claim that music expert Dr. Lawrence Ferrara should have been disqualified because he previously had been hired by Universal Music Group subsidiary Rondor to compare “Stairway to Heaven” to the original recording of “Taurus.” Ferrara had essentially switched sides in the case, Skidmore said.
But the panel noted neither Rondor nor Universal has a stake in the suit, and found no evidence Ferrara had in fact switched sides.
Emails seeking comment from Skidmore’s attorney and Led Zeppelin’s attorney were not answered by press time.