Skidmore v. Zeppelin

952 F.3d 1051

Michael SKIDMORE, AS TRUSTEE FOR the RANDY CRAIG WOLFE TRUST, Plaintiff-Appellant,

v.Led ZEPPELIN; James Patrick Page; Robert Anthony Plant; John Paul Jones; Super Hype Publishing, Inc. ; Warner Music Group Corporation; Warner/Chappell Music, Inc.; Atlantic Recording Corporation; Rhino Entertainment Company, Defendants-Appellees.

Michael Skidmore, as Trustee for the Randy Craig Wolfe Trust, Plaintiff-Appellee,

v.Warner/Chappell Music, Inc., Defendant-Appellant,andLed Zeppelin; James Patrick Page; Robert Anthony Plant; John Paul Jones; Super Hype Publishing, Inc. ; Warner Music Group Corporation, Atlantic Recording Corporation; Rhino Entertainment Company, Defendants.

No. 16-56057

No. 16-56287

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 23, 2019 San Francisco, California

Filed March 9, 2020

McKEOWN, Circuit Judge, with whom THOMAS, Chief Judge, FLETCHER, RAWLINSON, MURGUIA, NGUYEN, Circuit Judges, join in full, and with whom WATFORD, Circuit Judge, joins except as to Part IV.C, and with whom HURWITZ, Circuit Judge, joins except as to Parts IV.C.3 and IV.C.4, and with whom BADE, Circuit Judge, joins except as to Part IV.C.3:

Stairway to Heaven has been called the greatest rock song of all time. Yet, hyperbole aside, nearly 40 years after the English rock band Led Zeppelin released its hit recording, the song is not impervious to copyright challenges. The estate of guitarist Randy Wolfe claims that Led Zeppelin and its guitarist Jimmy Page and vocalist Robert Plant copied portions of Taurus, a song written by Wolfe and performed by his band Spirit.

This appeal stems from the jury's verdict in favor of Led Zeppelin and a finding that the two songs are not substantially similar. Like the jury, we don't need to decide whether Stairway to Heaven has a place in the annals of iconic rock songs. Instead, we address a litany of copyright issues, including the interplay between the 1909 and 1976 Copyright Acts, the inverse ratio rule, the scope of music copyright, and the standards for infringement.

The 1909 Copyright Act, which does not protect sound recordings, controls our analysis. The copyright at issue is for the unpublished musical composition of Taurus , which was registered in 1967. The unpublished work is defined by the deposit copy, which in the case of Taurus consists of only one page of music. We also join the majority of circuits in rejecting the inverse ratio rule and overrule our precedent to the contrary. Finally, we are not persuaded by the challenges to jury instructions and various other evidentiary and trial rulings. We affirm the district court's entry of judgment in favor of Led Zeppelin and related parties.

BACKGROUND

Randy Wolfe, professionally known as Randy California, wrote the instrumental song Taurus in 1966 or 1967. He was a guitarist in the band Spirit. Spirit signed a recording contract in August 1967 and released its first eponymous album—which included Taurus —a few months later. Wolfe also entered into an Exclusive Songwriter's and Composer's Agreement with Hollenbeck Music Co. ("Hollenbeck"). In December 1967, Hollenbeck registered the copyright in the unpublished musical composition of Taurus , listing Wolfe as the author. As required for registration of an unpublished work under the 1909 Copyright Act, which was in effect at the time, Hollenbeck transcribed Taurus and deposited one page of sheet music (the "Taurus deposit copy"), with the United States Copyright Office.

Around the same time, across the Atlantic, another rock band, Led Zeppelin, was formed by Jimmy Page, Robert Plant, John Paul Jones, and John Bonham. Led Zeppelin released its fourth album in late 1971. The untitled album, which became known as "Led Zeppelin IV," contained the now iconic song Stairway to Heaven . Stairway to Heaven was written by Jimmy Page and Robert Plant.

It is undisputed that Spirit and Led Zeppelin crossed paths in the late 1960s and the early 1970s. The bands performed at the same venue at least three times between 1968 and 1970. Led Zeppelin also performed a cover of a Spirit song, Fresh Garbage . But there is no direct evidence that the two bands toured together, or that Led Zeppelin band members heard Spirit perform Taurus .

Wolfe passed away in 1997. After his death, Wolfe's mother established the Randy Craig Wolfe Trust (the "Trust")¹ and served as the trustee until she passed away. Neither Wolfe nor his mother filed a suit regarding Stairway to Heaven . Michael Skidmore became a co-trustee of the Trust in 2006.

Fast forward forty-three years from the release of Stairway to Heaven to May 2014. Skidmore filed a suit alleging that Stairway to Heaven infringed the copyright in Taurus , naming as defendants Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, and the Warner Music Group Corporation as parent of Warner/Chappell Music, Inc. ("Warner/Chappell"), Atlantic Recording Corporation, and Rhino Entertainment Co. (collectively "Led Zeppelin").² One may wonder how a suit so long in the making could survive a laches defense. The Supreme Court answered this question in Petrella v. Metro-Goldwyn-Mayer, Inc ., which clarified that laches is not a defense where copyright infringement is ongoing. 572 U.S. 663, 668, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014).

Skidmore alleged direct, contributory, and vicarious copyright infringement. He also sought equitable relief for a claim that he titled "Right of Attribution—Equitable Relief—Falsification of Rock n' Roll History." Skidmore's claims are not based on the entire Taurus composition. Rather, Skidmore claims that the opening notes of Stairway to Heaven are substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy:

The claimed portion includes five descending notes of a chromatic musical scale. These notes are represented on the piano as a set of adjacent black and white keys, from right to left. The beginning of Stairway to Heaven also incorporates a descending chromatic minor chord progression in A minor. However, the composition of Stairway to Heaven has a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios, which are not present in Taurus .

Led Zeppelin disputed ownership, access, and substantial similarity. Led Zeppelin also alleged affirmative defenses, including independent creation, unclean hands, and laches.

At the close of discovery, Led Zeppelin moved for summary judgment. The district court granted the motion in part and denied it in part. The district court dismissed the claims against defendants John Paul Jones, Super Hype Publishing, and Warner Music Group because they had not performed or distributed Stairway to Heaven within the three-year statute of limitations period preceding the filing of the complaint. The district court also granted summary judgment to Led Zeppelin on Skidmore's "Right of Attribution—Equitable Relief: Falsification of Rock n' Roll History" claim. Although the claim was "creatively termed" and "inventive" according to the district court, a right of attribution claim under the Copyright Act extends only to visual arts.

The district court also ruled that under the 1909 Act, the scope of the copyright was circumscribed by the musical composition transcribed in the Taurus deposit copy. Thus, only the one-page Taurus deposit copy, and not a sound recording, could be used to prove substantial similarity between Taurus and Stairway to Heaven .

The district court granted Led Zeppelin's motion in limine to exclude Taurus sound recordings and expert testimony based on those recordings. The district court again concluded that the Taurus deposit copy, rather than any recordings of Spirit's performance of Taurus , formed the sole benchmark for determining substantial similarity. The district court found that there were triable issues of fact relating to ownership, access, substantial similarity, and damages.

Against the backdrop of these rulings, the trial lasted five days. Two key issues predominated: access to Taurus by Led Zeppelin band members and substantial similarity.

On the access question, the district court allowed Skidmore to play various sound recordings of Taurus for Page outside of the presence of the jury. Skidmore then examined Page on access in front of the jury. Page testified that he owned "a copy of the album that contains ‘Taurus,’ ... in [his] collection," while denying "any knowledge of ‘Taurus.’ "

The substantial similarity question pitted two expert musicologists against each other. Skidmore's expert, Dr. Alexander Stewart, analyzed, one by one, five categories of similarities. Dr. Stewart acknowledged that a chromatic scale and arpeggios are common musical elements. But he found Taurus and Stairway to Heaven to be similar because the descending chromatic scales in the two compositions skip the note E and return to the tonic pitch, A, and the notes in the scale have the same durations. Then he pointed to three two-note sequences—AB, BC, and CF#—that appear in both compositions. In his view, the presence of successive eighth-note rhythms in both compositions also made them similar. Finally, he testified that the two compositions have the same "pitch collection," explaining that certain notes appear in the same proportions in the beginning sequence of both works.

In sum, Dr. Stewart claimed that five musical elements in combination were copied because these elements make Taurus unique and memorable, and these elements also appear in Stairway to Heaven. Skidmore's closing argument reinforced these points. Neither Dr. Stewart nor Skidmore's counsel argued that the categories of similarities were selected and arranged to form protectable expression in the design, pattern, or synthesis of the copyrighted work. Nor did they make a case that a particular selection and arrangement of musical elements were...