There’s a lady who’s sure all that glitters is gold…
The question is, who gets the gold?
The music industry breathed a big sigh of relief two years ago when Led Zeppelin beat a lawsuit accusing the band of infringement in their anthem “Stairway to Heaven.” It was only a year after Robin Thicke and Pharrell Williams “Blurred Lines” was found to infringe Marvin Gaye’s “Got to Give it Up.” That decision had left the industry reeling, and so the stakes in the instant case felt even higher for music creators.
The jury decided in favor of Led Zeppelin quickly. At the time, experts noted that while there could be cause for the plaintiff to appeal, an appeal would probably be unsuccessful due to the stringent standard required.
In spite of facing an uphill battle – and additional legal costs – the plaintiff did indeed appeal…
And won on a few critical points.
(This happened after Thicke and Williams lost their appeal – again surprising the industry, and not in a good way.)
Parts of the decision have been vacated and the case remanded, leaving the parties and the court to start over. The parties need to reargue their cases, and the court needs to (a) treat certain evidence differently and instruct the jury more fully.
When one party accuses another of infringement, what does that actually entail?
There are two factors required for infringement: a valid copyright and the copying of protect aspects. The copying of protected assets requires (1) copying and (2) unlawful appropriation.
Take note of the fact that copying is required. It is possible for two people could separately dream up a song that sounds substantially similar with neither copying the other. Were such a coincidence to occur, there would be no infringement, because independent creation is complete defense.
Of course, to prove infringement (or any other case), you need evidence. Without direct evidence of the elements of copyright infringement, a plaintiff can try to prove their point with circumstantial evidence. In this case, they need to show that Led Zeppelin had access to the protected material and that the original composition in question, “Taurus,” and the copy (“Stairway to Heaven”) share probative similarities.
Now, let’s look at the second part of copying: unlawful appropriation. This requires substantial similarity. Such similarity(s) must include parts of the plaintiff’s work that are protected.
Whether substantial similarity exists can be determined by a pair of tests. The extrinsic test is an objective comparison test. It compares the individual copyrighted elements from the original with those of the copy. The intrinsic test is a more subjective comparison which seeks to know whether an average, reasonable listener would find a similar concept and feel between the original and the copy.
“Taurus,” the song allegedly being infringed by Led Zeppelin, was registered with the Copyright Office in 1967; at that time, the Copyright Act had last been amended in 1909. In accordance with that version of the Act, whatever was deposited with the Copyright Office was what was to be protected. And the deposit copy consisted of sheet music.
In other words, the musical composition (the melody, the instruments, lyrics, and so forth) was filed and thus protected, but the sound recording wasn’t. The Copyright Act of 1909 didn’t account for sound recordings as deposit copies.
Because of this, the district court kept the music out of the courtroom and barred the plaintiff from playing it in front of the jury. The rationale was that it would’ve been too prejudicial, creating bias within the jury that could affect the outcome of the case.
The appellate court said this was improper. While the recording of “Taurus” couldn’t be played to show substantial similarity, the lower court should have allowed for it to be played to demonstrate access. Any confusion on the jury’s behalf as to how to use the recording should have been used could have been mitigated by a proper explanation.
And that’s not all…
Small musical elements aren’t copyrightable per se. For instance, a single music note can’t be protected. But a collection of notes strung together certainly can.
The trial judge in this case instructed the jury that certain elements aren’t protectable, but failed to instruct that the selection and arrangement of unprotectable musical elements can be protectable.
This is especially problematic in light of the findings of one of the plaintiff’s experts. Using the extrinsic test, the expert found substantial similarity based on a combination of five elements. Some of those elements were in the public domain, but some were protectable.
A different instruction didn’t specify that the “original” part of a work need not be new or novel. However, the instruction did state that elements from public domain or prior works aren’t original, and therefore not protectable by copyright.
These omissions in the instructions weren’t technically incorrect, but the appellate court found them misleading. They suggested that notes strung together would not be copyrightable – even if they were arranged in an original, creative way, as “Taurus” was.
The court found this to be prejudicial. The conclusions a reasonable jury could draw from the instructions and their omissions completely disregard the expert’s findings of substantial similarity under the extrinsic test.
Ultimately, the decision was vacated in part and remanded for a new trial.
And so the industry waits again for the outcome…
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