Recently, a copyright case years in the making has come back into the news. The heir to the composer of a song called “Taurus,” performed by a band called Spirit, had filed suit against a little-known band called Led Zeppelin over something called “Stairway to Heaven.” In March, a court in California denied Led Zeppelin’s motion for summary judgement, so the case went forward toward a jury trial. The judge not only determined that the songs were sufficiently similar for a jury’s determination, but also that the claim was not barred by laches (the doctrine that a delay in bringing a lawsuit unfairly prejudiced the defendant). The 2014 re-release of Led Zeppelin recordings, including this “greatest hit”, helped plaintiff demonstrate that the infringement was within the 3-year statute of limitations, so it wasn’t vulnerable to the laches defense.
The jury decided there was not enough similarity between the two songs to constitute infringement. Personally, I think it comes down to the first four chords of the song—which, in all fairness, are apparently the simplest thing to play on the guitar, because everyone seems to know how to play them. The plaintiff argued, though, that there were other elements to consider, such as similarity in instrumentation, in feel, and in recording effects—none of which were necessarily protected by copyright, in my opinion (and apparently in the opinion of the jury).
In 2015, there was another high-profile plagiarism trial against performers Robin Thicke, Pharrell Williams, and T.I. The family of Marvin Gaye sued them, claiming that the hit “Blurred Lines” infringed on Gaye’s composition “Got to Give It Up.” The jury awarded $7.3 million in damages to be paid by Thicke and Williams. This was a striking victory owed to the expert witness, because the jury was not allowed to hear the Marvin Gaye recording; the court allowed them to hear only a stripped down instrumental rendition of the sheet music, because the sheet music was all that had been filed for copyright protection.
In Skidmore v. Led Zeppelin, as well, the jury was not allowed to hear the two recordings, but limited to considering the sheet music that was deposited with the U.S. Copyright Office at the time of registration. Undoubtedly, an accomplished musician served as an expert witness and played both songs as written—but apparently not in a manner that could convince the jury. So, on appeal, Skidmore (trustee of the Estate of Taurus-band member Randy California) is arguing that the jury should have been allowed to hear the recordings. (IMHO: he’ll need some good luck on that argument). Skidmore is also now arguing that the judge gave jurors “a series of erroneous instructions on the scope of copyright protection.” (To this outside observer, that’s less clear.)
On the one hand, the easy access provided by the internet gives each of us the chance to compare a wide variety of music in intimate detail. So, you might be tempted to determine, with absolute certainty, that one songwriter copied someone else’s work. (Consider, for example, the bass lines in “Ice Ice Baby” by Vanilla Ice and “Under Pressure” by David Bowie. Hmm…) On the other hand, just as beauty is in the eye of the beholder, infringement is in the ear of the listener—or the listeners comprising a jury of one’s peers. Because jury trials are notoriously unpredictable, there’s no such thing as a slam dunk. That uncertainty can both discourage and delay a plaintiff from bringing a lawsuit, or can encourage a defendant to settle sooner rather than later.
I welcome your feedback on this and all of my blog articles—because while the law changes slowly, the practical application of the law changes much more rapidly. What do you think?
