SAN FRANCISCO (CN) – The ongoing saga of the seminal opening to Led Zeppelin’s “Stairway to Heaven” played out in the Ninth Circuit on Monday, with a former music journalist complaining a jury wasn’t allowed to listen to the recording of a song that was supposed to have influenced Zeppelin’s rock epic.
Michael Skidmore brought the claim on behalf of the late guitarist Randy California, born Randy Wolfe, from the LA-prog 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.
A federal jury agreed that while Plant and Page heard the song “Taurus” before they created “Stairway to Heaven” and that Skidmore had a valid copyright in the Spirit song, Skidmore hadn’t proven the songs were “extrinsically” similar.
Led Zeppelin released their eight-minute rock epic “Stairway to Heaven” in 1971, but the group 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 during the 2016 trial, members of Led Zeppelin said they were not familiar with “Taurus” and did not remember playing with the band at several stateside shows.
On Monday before a Ninth Circuit panel, Skidmore’s attorney argued the full composition of “Taurus” should have been admitted at trial to show a substantial similarity between the two song introductions.
Skidmore says his hands were tied by the trial judge’s decision allowing the jury to only compare the exact notes from the sheet music. By not allowing jurors to hear sound recording of the two songs, they were forced to compare an artificial, inaccurate version of “Taurus” to “Stairway to Heaven,” according to Skidmore.
“We couldn’t use no sound recordings, which were the very thing at issue,” said Skidmore’s attorney Francis Malofiy with Alfred Joseph Fluehr.
Circuit Judge Richard Paez pressed Led Zeppelin’s attorney over whether the jury should have been allowed to hear the songs followed by expert testimony regarding what elements in the sheet music were also in the finished version of “Taurus.”
“It does seem odd that the jury never gets to hear the sound recording of ‘Taurus,’” said Paez.
Led Zeppelin’s attorney Peter J. Anderson from Helene Marian Freeman said it would have been an abuse of discretion to allow the sound recordings, because nonprotected techniques – like styles of playing the guitar – have a powerful effect on people.
“That’s why when people listen to this music they say, ‘That sounds similar,’” said Anderson. “That’s a real, real danger to mislead a jury.”
Malofiy noted the principle which says if there is a high degree of access to an artist’s work, like Page and Plant listening to the song “Taurus” at concerts or owning a copy of the work as Page acknowledged he had, then a finding of infringement may be based on a lesser degree of similarity.
But Circuit Judge Sandra Segal Ikuta wondered how access to “Taurus” mattered since the jury found no substantial similarity.
Malofiy responded that the jury was given wrong instructions on how to review the two songs and should have been able to hear the recording. Instead, the jury was forced to compare apples and oranges, the sheet music from “Taurus” and the completed version for “Stairway to Heaven.”
Senior District Judge Eric N. Vitaliano, sitting by designation from the Eastern District of New York rounded out the panel, which did not indicate when it would rule.