Ninth Circuit Sinks Plaintiff’s Spirit Like a Lead Balloon: Some Copyright Protections Have Died, And Not Gone to Heaven
When filed in 2014, Skidmore vs. Led Zeppelin threatened to publicly humiliate the members of Led Zeppelin. The plaintiff accused them of stealing his work for what became among the best-known rock music ever recorded: the opening acoustic section of Stairway to Heaven. Led Zeppelin’s guitarist, Jimmy Page, had written the music. But when the case ended in March, the Ninth Circuit delivered a landmark en banc decision, written by Judge Margaret McKeown. That brought an end to the case and, in the process, changed how courts across the country are handling copyright infringement cases and will do so for years to come.
Gone is the Ninth Circuit’s decades-long use of the “inverse ratio rule.” This rule provided that, as the evidence of the defendant’s access increases, the plaintiff’s burden to demonstrate substantial similarity decreases. For music cases, unless the alleged infringer copied something contained in the deposit copy, the claim is without merit on arrival. Even then, if the alleged similarity is in a common selection or arrangement of musical notes, a district court is not likely to let the case get to a jury.
For those unfamiliar with the dispute, music anthropologists had for many years questioned the eerie similarity between the first half of the iconic 1971 Led Zeppelin anthem Stairway to Heaven—the so-called acoustic half—and a lesser-known 1968 song, Taurus, by the band Spirit. The reader can weigh that on many comparison videos, such as https://www.youtube.com/watch?v=deVNnnuf24w. The song was written by Spirit’s Randy Wolfe, who Jimi Hendrix had famously renamed “Randy California.”
At the time, Wolfe had no interest in filing a lawsuit. As the years passed, and after Wolfe died, the industry assumed the claim had long-since become time-barred. But in 2014, in a case involving the motion picture Raging Bull, the Supreme Court ruled that no matter when a defendant’s infringement of a work began, if the infringement were on-going, such as through the continued distribution of an unauthorized derivative work, the copyright owner could sue for infringement and at least obtain damages for activity occurring in the prior three years. Given the enduring presence of Stairway to Heaven on radio playlists and in on-line stores, Wolfe’s heirs promptly sued Led Zeppelin and its record company.
Unfortunately for Wolfe, in 1968, United States copyright law was governed by a statute that had taken effect in 1909. Protection for music extended only to the musical composition—the notes and lyrics—and did not extend also to the recording of a performance of that composition. Thus, no matter how striking the similarities between Stairway to Heaven and Spirit’s recording of Taurus might be, the...
