LOS ANGELES (CN) — The plaintiff who brought a failed lawsuit against Led Zeppelin over their classic song “Stairway to Heaven” is fighting a bid for attorney’s fees as well as claims that his attorney’s conduct was far from exemplary at trial.
The attorney, Francis Malofiy, made headlines shortly after the trial when he was suspended for misconduct in a prior copyright infringement case over R&B star Usher’s “Bad Girl.”
A Bloomberg profile on the Media, Pennsylvania-based Malofiy recalled how he had successfully taken the stand to defend himself after he was charged for smashing beer glass across a man’s face during a bar brawl in August 2008.
Led Zeppelin’s publisher Warner/Chappell Music sought to make hay off that negative press by accusing Malofiy of “gross misconduct” in its motion for attorney’s fees, noting that Malofiy had been fined and hit with a three-months-and-a-day suspension in the Pennsylvania court where he had litigated the Usher case.
Warner/Chappell also accused the plaintiff in the “Stairway to Heaven” case, former British music journalist Michael Skidmore, of ratifying his “counsel’s ongoing misconduct” by hiring him in spite of the looming suspension charges.
The music publisher wants $800,000 in attorney’s fees and costs.
Skidmore, a trustee of the Randy Craig Wolfe Trust, lost out to Led Zeppelin guitarist Jimmy Page and singer Robert Plant after a six-day trial in June. The jury found the rock legends did not lift the guitar riff in “Stairway to Heaven” from a little-known rock song called “Taurus.”
“Taurus” was written by Wolfe, better known by his nickname Randy California, in the late 1960s and performed by his Los Angeles-based progressive rock band Spirit.
In an opposition that cites last year’s “Blurred Lines” copyright verdict as an example of why the judge should not award attorney’s fees and costs, Skidmore calls the motion “baseless” and says that “no award of fees is warranted.”
“The British rule — where the loser pays — is not the law,” Skidmore says, calling Page and Plant “massive figures in the music industry with almost unlimited funds.”
He adds that “in contrast, plaintiff is a small charity with nominal funds who cannot possibly pay the requested number.”
Skidmore says Warner/Chappell’s motion mischaracterized his lawsuit as unreasonable and frivolous despite the “wealth of evidence to the contrary,” and accuses the band’s attorneys of “making misguided, baseless, and irrelevant personal attacks on opposing counsel.”
“These attacks are unbecoming, and in all instances attempt to conclusorily characterize good-faith advocacy as ‘misconduct.’ An award of fees on such a basis would chill good-faith advocacy and leave attorneys in fear that they could later be punished for good-faith argumentation,” the July 18 opposition states.
Skidmore argues that the case was “close at all stages” and that issues surrounding ownership of the song, plagiarism, and whether Led Zeppelin had listened to “Taurus” before they created “Stairway to Heaven” had to be determined at trial.
In the end, the jury did find that Led Zeppelin had “access” to “Taurus” despite Page and Plant’s “lack of candor” during the trial, Skidmore says, adding that both men said they did not recall hearing the song.
“Something like that would stick in my mind. It was totally alien to me,” Page said of the song, though he also testified on the stand that he had found five Spirit albums in his collection of 4,329 albums and 5,882 CDs.
“Defendants, it should be noted, spent much time and money contesting these elements, but at time of trial had little, if any, factual support for their defenses,” Skidmore says in his 22-page opposition.
The jury was limited to hearing performances based on the sheet music of “Taurus,” deposited with the U.S. Copyright Office. Skidmore says that if the jurors had heard Spirit’s recorded version of the song, the outcome of the trial could have been different.
“Plaintiff notes that his view of the scope of the expression protected by the deposit transcription of Taurus was one recently endorsed by a prior court in this district, Williams v. Bridgeport Music,” Skidmore says, referencing the “Blurred Lines” case. “That this court reached a different legal conclusion on this novel legal issue supports the notion that reasonable minds can differ.”
Elsewhere in the filing, Skidmore slings some mud of his own, claiming that the defendants “apparently worked” with the trust’s music publisher Hollenbeck Music to list “Taurus” as a work for hire with the copyright office, in an attempt to quash the trust’s claim of ownership.
Skidmore calls that tactic a “secretive and fraudulent attempt” to change ownership of the song and adds that it was a “breathtaking attempt to improperly undermine plaintiff’s lawsuit.”
He adds, “To be clear, the registration was completely false as there is no evidence that ‘Taurus,’ written in 1966, could have possibly been covered by the work for hire agreement signed in August 1967 with Hollenbeck Music. Defendants knew this, but presented the false registration document to the court anyway in their summary judgment package. Filing a false registration is illegal under the Copyright Act.”
Skidmore asked U.S. District Judge Gary Klausner to deny the motion, noting that the case was “hard fought, and was filed with the best of motivations.” He also noted the stark difference between the trust he oversees and the rock legends.
“The purpose of the Copyright Act would not be served in imposing costs and fees, especially given the enormous discrepancy between defendants, who are titans in the music industry, and the trust, which is a small charity,” Skidmore says in his opposition.
Klausner is scheduled to hear the motion on Aug. 8 at the Edward R. Roybal courthouse in downtown Los Angeles.
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