Stairway back to court

April 30, 2019
Patterson Thuente IP

Erroneous jury instructions trip up copyright verdict

The 2016 ruling by a trial court in a copyright infringement case over Led Zeppelin’s classic rock anthem “Stairway to Heaven” garnered a lot of attention. The U.S. Court of Appeals for the Ninth Circuit has now sent the case back to the trial court (which ruled in the band’s favor), shedding some valuable light on how to prove copyright infringement of music in the process.

Original score

The plaintiff in the case (Michael Skidmore, the trustee for a trust in the name of the late Randy Wolfe, a member of the band Spirit) alleged that Led Zeppelin copied “Stairway to Heaven” from Wolfe’s song “Taurus,” which was written in 1966. “Stairway to Heaven” was recorded between December 1970 and January 1971. Specifically, Skidmore claimed that the opening notes to the Zeppelin song are substantially similar to those in “Taurus.”

A jury returned a verdict in favor of Led Zeppelin, finding that the two songs were not substantially similar under the extrinsic test. The plaintiff appealed on multiple grounds.

playing guitar image

The reprise

The plaintiff asserted that the trial court’s jury instructions included several errors that affected the outcome of the case. For example, he argued that the court had prejudicially erred in giving the jury instructions by failing to instruct them that the selection and arrangement of otherwise unprotectable musical elements (such as notes or a scale) are protectable. The appeals court agreed.

The court focused on the extrinsic test for determining whether an allegedly infringing work is substantially similar to the original work. The jury had cited this test in reaching its verdict. Under the test, which is intended to be an objective test, the works are broken down into their constituent elements, which are then compared. Only elements that are protected by copyright are considered in the analysis.

The appeals court found the trial court’s failure to instruct the jury on protection for original combinations of unprotectable music elements “especially problematic” in light of testimony from Skidmore’s expert musicologist. He testified that there was extrinsic substantial similarity based on the combination of five elements, some protectable and some not. Without a selection and arrangement instruction, the court said, “the jury instructions severely undermined Skidmore’s argument for extrinsic similarity, which is exactly what the jury found lacking.”

Fury over sound

The plaintiff also argued that, under the Copyright Act of 1909, the copy of an unpublished work submitted along with a copyright registration application (known as a deposit copy) is purely archival in nature and doesn’t define the scope of the copyright. The 1909 Act was the applicable version of the Copyright Act in 1967, when the copyright for “Taurus” issued.

At that time, copyright protection wasn’t available for sound recordings, and composers were required to submit sheet music as the deposit copy for musical compositions. But the plaintiff contended that copyright protection under the 1909 Act extended beyond sheet music to sound recordings, so that Spirit’s recordings also could be used to prove substantial similarity. As the court observed, no federal appellate court had previously addressed this issue.

The court concluded that, for unpublished musical works under the 1909 Act, the deposit copy defines the scope of the copyright. Because the act makes the existence of copyright dependent on the deposit copy, the court reasoned, it makes sense that the deposit copy also defines the scope of protection. (Note that, under the 1909 Act, copyright didn’t attach until a work was published or registered. Under current law, copyright attaches at creation, and sound recordings can be submitted as deposit copies.)

Moreover, the court pointed out, Congress and the Register of Copyrights have taken care to ensure the preservation of deposit copies — an indication of the importance of deposit copies for unpublished works. Even under later versions of the Copyright Act, the purpose of deposit copies has been described as providing a way “to identify the work in which the registrant claims a copyright.”

Heaven can wait

The court ultimately returned the case, first filed in 2014, to the trial court for a new trial. It remains to be seen whether another jury, operating under more complete instructions, will find substantial similarity between the songs. 

Skidmore v. Led Zeppelin, No. 16-56057, Sept. 28, 2018, 9th Cir.

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