It was a memorable trial in which the plaintiff’s lawyer used the defendant’s album artwork as his computer screensaver… the jury got to listen to music from the classic Disney musical Mary Poppins… and one of the world’s greatest guitarists played both air guitar and air drums from the witness stand.
The fanfare was almost enough to make spectators forget what the suit was about.
But the high stakes of the case Skidmore v. Led Zeppelin, which accused the seminal English rock group of copyright infringement over their biggest hit, “Stairway to Heaven,” helped keep the merits of the case at the forefront.
If you thought you’d heard before that Led Zeppelin “ripped off” someone else’s music, you probably did. The band has been accused more than once of co-opting others’ sounds in the creation of their own works. “Stairway to Heaven” in particular has been the subject of these rumors for decades. Yet the song was released 45 years ago, and copyright law has a statute of limitations (the time limit in which to file a lawsuit) of 3 years after an infringement is discovered. So how and why can the band be sued over it now?
The short answer is that copyright law provides that each new infringement of a work is a discrete claim which starts a new statute of limitations period. In this case, Led Zeppelin founder Jimmy Page has spent the past several years remastering and re-releasing Led Zeppelin’s catalog of studio albums. “Stairway to Heaven” was re-released in 2012, triggering a new timeframe to bring infringement lawsuits related to the song.
The lawsuit was brought by the estate of a guitarist named Randy Wolfe, who played in a band called Spirit in the 1970s. Wolfe’s estate accuses Led Zeppelin of infringing on Spirit’s song “Taurus,” which was released before “Stairway” and contains a similar chord progression.
That chord progression proved to be a problem for the plaintiff. The sheet music for both songs demonstrated that the melodies of the songs were not the same – only the chord progression was. And as for any chord progression, there are only 12 music notes, placing an inherent limit to how many ways they can be assembled.
Led Zeppelin seized upon this fact, with Page telling the jury that “Stairway to Heaven” was largely inspired by the Mary Poppins song “Chim Chim Cher-ee,” which has a similar progression. The band also set forth evidence that this progression was used at least as early as the 1600s in a classical composition that is now in the public domain. More recently, a group called the Modern Folk Quartet released a song in 1963 containing the progression – five years before Spirit released “Taurus.”
It didn’t take long for the jury to decide that Led Zeppelin was not guilty of infringement, to the joy of musicians and songwriters everywhere.
After all, the industry is still reeling from the surprise decision last year that Robin Thicke and Pharrell’s hit “Blurred Lines” infringed Marvin Gaye’s “Got to Give it Up.” In our blog about that case, we discussed how the outcome could have a chilling effect on the music creation process. And since that time, infringement lawsuits have been brought against popular artists including Justin Bieber and Ed Sheeran. The Led Zeppelin case, had it turned out differently, had the potential to continue this trend – and to make other artists think twice about releasing remastered or legacy editions of older albums. But the decision in this case may reverse the tide.
Experts suggest that the plaintiff might appeal the verdict by arguing that certain evidence should have been allowed into the trial – particularly the musical recordings of the songs. There are different copyrights for different aspects of a song, and the plaintiff’s “Taurus” copyright is only in the composition (the sheet music) rather than in the sound recording. Consequently, the jury never heard Spirit’s recording of “Taurus”; rather, they heard only an expert performance of the sheet music.
Yet these same experts suggest that an appeal would be unsuccessful. The only question would be whether the judge abused his discretion by not allowing the original recording to be heard. This is a stringent standard, and courts are often hesitant to make such a finding.
The issue of attorneys’ fees could also deter an appeal. Copyright law gives the courts discretion to assess attorneys’ fees even if the losing party had a reasonable claim, and a party’s conduct during the litigation can play a role in this decision.
In the instant case, the plaintiff’s attorney prompted more than 100 sustained objections and numerous rebukes from the judge. This behavior could factor into the court assessing costs against the plaintiff estate even if it doesn’t appeal – and if it does, the likelihood of being charged for Led Zeppelin’s legal fees rises.
Of course, one could argue that the plaintiff has already been successful in one regard. The estate’s trustee testified that he brought this lawsuit to cement Wolfe’s legacy. It’s safe to say that far more people now know about Randy Wolfe, Spirit, and “Taurus” than did before the suit. So if the case is truly about a legacy rather than royalties, the plaintiff has already won.
If you have a question about musical copyright law, or any other intellectual property matter, contact us through our website or call (800) 853-9692.
ORIGINAL PUBLICATION OF THIS ARTICLE CAN BE FOUND ON OUR DEDICATED BLOG: https://lomnitzerlaw.wordpress.com/