A Triumph Of Spirit: Led Zeppelin Forced To Encore In Copyright Case

The Ninth Circuit closed out the month of September on a high note. It issued a resounding opinion last week that was the judicial equivalent of a wailing, 10-minute, pedal-effect driven, windmilling guitar solo. It was loud. It was wild. It blew out the speakers and raised gooseflesh on necks. It was citable precedent addressing the issue of jury instructions for copyright matters and remanded for retrial an important music case.

The case, you may recall, involved a song written by one Randy Wolfe, whom the Ninth Circuit helpfully reminds us was nicknamed “Randy California” by no less a soul than Jimi Hendrix. That song, Taurus, came out in 1967 or 1968 (that whole era is a bit hazy) and was played by Wolfe’s band, Spirit, during its nationwide tours. One of those Spirit tours included a little-known (at the time) opening act that was looking to break into the U.S. market and performing under the name Led Zeppelin.

Fast forward to the 20-teens and Wolfe’s estate (he passed away in 1997) brought a claim against Spirit’s former opening act, which has not opened for anybody in a long, long time, alleging that the Zep purloined a substantive chunk of Taurus in crafting their mega-hit, Stairway to Heaven.

To many listeners, the songs sounded remarkably similar, and the court found the similarities sufficient to survive summary judgment. Another of the plaintiff’s claims — “Falsification of Rock History” — was found to not be an actual thing and was shorn from the case. The parties then geared up for trial, raising multiple issues as to experts, jury instructions, and the import of sheet music.

At trial, before Judge R. Gary Klausner of the Central District of California, Zep’s main honchos, Jimmy Page and Robert Plant, claimed to have written Stairway to Heaven without using any parts of Spirit. And the jury was persuaded, entering judgment in their favor and finding no infringement.

On appeal, the Ninth Circuit, in a thorough and well-reasoned opinion, found that the jury may have found as they did based on improper and prejudicial jury instructions. Judge Klausner’s instructions, the panel noted, worked to stack the deck against the plaintiff by, among other things, failing “to instruct the jury that the selection and arrangement of unprotectable musical elements” are protectable under the Copyright Act. The instructions instead advised that copyright does not protect “chromatic scales, arpeggios or short sequences of three notes” or elements from public domain or prior works. This, though, is misleading as the creative selection arrangement of such elements is indeed covered by copyright.

It has long been held that the creative selection and arrangement of basic elements gives rise to protection. (I argued in favor of such protection before the Ninth Circuit way back in the halcyon days of 2011.) This makes sense in the musical context because, as the panel notes, while the “individual elements of a song, such as notes or a scale, may not be protectable,” it is obvious that “music is comprised of a large array of elements, some combination of which is protectable by copyright.”

The Ninth Circuit thus concluded that the court, in declining to instruct the jury on the protectability of creative selection and arrangement, “severely undermined” the plaintiff’s “argument for extrinsic similarity, which is exactly what the jury found lacking.” This was reversible error.

The Ninth Circuit also found that the court abused its discretion by denying the jury the opportunity to hear a recording of the actual Spirit song at issue (as opposed to a rendition of the sheet music). The panel concluded that the Spirit song recording could not be played to the jury to establish substantial similarity (long story, but under the 1909 Copyright Act, which has since been amended, the deposit copy of the copyrighted work defines the scope of protection and only the sheet music for Taurus had been deposited with the Copyright Office), yet is admissible to establish access. This is also supported by reason, as Page and Plant did not visit the Copyright Office to access the sheet music for copying purposes, but instead may have heard the sound recording, possibly at one of the shows at which they opened for Spirit. The sound recording, then, is evidence of possible access by the defendants. On remand, and at long last, the jury will hear the actual song that was allegedly copied.

One final item of note was the Ninth Circuit’s treatment of the court’s decision to give each party a time limit to present its case. Judge Klausner is well-known in the Central District as a fair and thoughtful jurist, one who runs a very tight ship and enforces his orders with precision. He often will limit each party to a certain number of hours to present their case at trial and if those hours are consumed before the trial is over, they are not often materially expanded. This policy is a beneficial one, as it ensures that the parties focus on the most important aspects of the dispute, and that the court and jury’s time is not wasted.

But, the Ninth Circuit noted that it was “troubled” by the “relative inflexibility of the district court” when the plaintiff ran out of time at trial. Many in attendance would agree that plaintiff’s counsel was not especially targeted and succinct, but, still, given the “complex nature of this case,” the Ninth Circuit seems to infer that more flexibility would have been in the interest of justice. Time limits or not, the parties will now return to trial in an encore that is sure to rock.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at [email protected], and you can follow his law firm on Instagram: @veniceartlaw.