I’ve written before about the legal battle between the bands Led Zeppelin and Spirit. Randy Wolf of Spirit wrote a song called “Taurus” and his estate”s representative alleged that “Stairway to Heaven” infringed on the copyright of that song. According to Wolf, the opening notes of “Stairway to Heaven” were substantially similar to the opening notes of “Taurus.” A jury in the Central District of California initially found in favor of Led Zeppelin.
The plaintiff appealed the decision to the Ninth Circuit, claiming that the instructions issued to the jury were erroneous. The appellate court agreed, and remanded the case back to earth — that is, to the trial court.
Originality
The jury had found the two songs were not substantially similar under what’s known as the extrinsic test, “one of two tests used to determine if an allegedly infringing work is substantially similar to a copyrighted work. This test objectively compares the protected areas of a work.”
The appellate court said the district court erred in the way it gave the jury instructions about originality. One of the instructions provided that selecting and arranging unprotectable musical elements made the resulting work unprotectable — but that’s not true. In this case, both songs had introductions with flute-like recorders, and acoustic guitars playing descending chromatic chords — each of which elements are not, on their own, worthy of copyright protection. When applying the extrinsic test, selection and arrangement of elements can be protectable, even if the elements themselves are not. Even selecting and arranging public domain elements could be considered original. The Ninth Circuit had already held that a mere seven notes could be enough to indicate that a work is worthy of copyright protection. Nothing in the jury instructions indicated that.
Inverse Ratio Rule
An important feature of every copyright infringement case, and especially in this one, is whether the alleged infringer had “access” to this song: Spirit and Led Zeppelin had performed at the same music festivals and on the same stages. Some of the musicians had spent time together. Jimmy Page even admitted that among his record collection, he had a copy of a Spirit album with “Taurus” on it. He didn’t know when he got the album, and he claimed he did not remember hearing the recordings prior to recording Stairway to Heaven.
This is important because of what’s known as the inverse ratio rule: the plaintiff has a lower standard of proving substantial similarity where there’s a higher degree of access. The Ninth Circuit said the jury instructions failed to include that nuance. It wasn’t a reversible error, because the jury hadn’t found there wasn’t copying under the extrinsic test. On remanding back to the trial court, the appellate court “suggested” that the judge include an inverse ratio jury instruction.
No Playback at Trial
Defendant had an advantage at trial, because the trial court did not allow the recording of “Taurus” to be played. This is crucial, because anyone who has heard the two recordings can hear that the introductions of recorders and acoustic guitar arguably sound very similar. The problem is that the deposit copy that was sent with the registration for the copyright only consisted of the sheet music. So, plaintiff was only allowed to use the sheet music and a piano rendition of the sheet music.
Plaintiff tried two other ways of bringing the recording into evidence, but was not successful. He argued that under the 1909 Copyright Act — which was in effect for this pre-1978 work — less attention should be paid to the deposit copy. The Ninth Circuit disagreed, saying that under the 1909 Act, what is filed is the only thing that determines the extent and scope of the copyright.
Second, at trial plaintiff had defendant Jimmy Page listen to the recording of Taurus — but defendants convinced the judge to allow him to listen to it, with headphones, out of sight of the jury, to avoid “undue prejudice.” On appeal, plaintiff argued that the jury should have been able to watch Page as he listened, to see his reaction. The appellate court agreed: “ the district court could have instructed the jury that the recordings were limited to the issue of access and that they were not to be used to judge substantial similarity.” (In my humble opinion, it’s difficult to imagine anyone not to use that listening opportunity as a time to determine whether the songs were substantially similar — the main point of the trial!)
Time Limits
Lastly, the Ninth Circuit cast a suspicious eye toward the district court in regards to the strict, 10-hour time limit each side was allotted in order to argue its case. (Personally, 10 hours for a complicated trial like this just sounds bizarre.) The Ninth Circuit stopped short of ordering the district court not to impose time limits — since there’s no rule against it — but strongly recommended against such limits.
Conclusion
Look, trials are complicated. Unless you were there for the whole ordeal, it’s very hard to know whether it was done right or wrong, because we weren’t hearing all the evidence in the way that it was allowed to be presented. The Ninth Circuit had the difficult task of weighing the objections one by one and trying to decide whether they impacted the initial finding of “no infringement” in favor of defendant Led Zeppelin. On remand, the deck is stacked more in favor of plaintiff. So, I guess the moral is that we really don’t know the result of a lawsuit until an appeal has been determined by the higher court — or the time for appeal expires.
