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Article: June 2020: Trademark & Copyright Litigation Update

July 01, 2020
Business Litigation Reports

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   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 lawsuit was to be confined to similarities found in Wolfe’s underlying composition.  And in 1968, the Copyright Office did not accept recordings as a form of the required deposit copy of the work being registered.  Only the sheet music was accepted.  Record companies and music publishers often saved money by submitting only a “lead sheet,” i.e., a condensed version of the composition in which the melody is written in music notation, the lyric is written below the staff, and the harmony is noted with chord symbols above the staff.  That was the case with Taurus.

Based on these principles, the district court ruled that the jury would not be allowed to listen to Spirit’s recording of Taurus, limiting plaintiff to Wolfe’s deposit copy.  The jury returned a verdict in favor of Led Zeppelin.  Plaintiff appealed.

In June 2019, two of the three Ninth Circuit judges sitting on the panel that heard the appeal decided that, although the scope of protection for an unpublished musical work is defined by what the author deposited with the Copyright Office, it was nevertheless error not to have allowed the jury to hear the Taurus sound recording.  According to the panel, the jury should have been allowed to watch Mr. Page’s reaction while listening to the recording, which would, somehow, bear on their determination of his credibility on the issue of whether he had accessed the work before writing Stairway to Heaven.  Given Page’s admissions that he owned the Spirit album that included Taurus, and testimony that Spirit played Taurus while on tour in the United States with Led Zeppelin before they wrote Stairway to Heaven, and given that Page would not be hearing Taurus in front of the jury for the first time, the probative value seemed far outweighed by the prejudice caused by the risk that the jury would be unable to forget any similarities between the recordings when deciding the issue of substantial similarity of the underlying composition.  (Apparently, no one thought to fix the problem by having Page listen to Taurus on headphones, while the jury watched for supposed facial indications that any denial of his having heard the song nearly 50 years earlier, when he wrote Stairway to Heaven, was not to be believed.  But Quinn Emanuel was not there to point this out.)  

The ruling was puzzling. And short-lived.  The Ninth Circuit decided to rehear the case en banc.  It affirmed the jury verdict.  It ruled that the district court committed no error in not letting the jury hear the Taurus recording.  As noted above, it used the en banc opportunity to establish principles for all copyright cases, not just music cases, to overturn any further use of the inverse ratio rule, limit the plaintiff’s work to what it had deposited at the time of registration, and clarify the extent to which the selection and arrangement of unprotectable elements, such as notes, could be protected nonetheless, collectively. 


Death of the Inverse Ratio Rule in the Ninth Circuit

Before this case, the Inverse Ratio Rule enabled a plaintiff to lower its burden on the extent to which the defendant’s work was substantial similar to the plaintiff’s: the higher the degree of access, the lower the bar for substantial similarity.  Commentators had criticized its logic and the absence of any statutory foundation to support it.  Some circuits, including the Second, had declined to follow the rule.  

After the Stairway to Heaven decision, access is no longer relevant in the Ninth Circuit to the determination of substantial similarity.  As Judge McKeown wrote: “The constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.  By rejecting the inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity.”  Skidmore v. Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020).


Only Claims That Allege Copy from the Deposit Can Survive

Much can be said about the social implications of a requirement that an artist be capable of reading and composing music in traditional notation to protect their work.  But the limitations of this holding are even more obvious: the composer’s expression of the song’s “feel” cannot so easily be transcribed, at least not by lead sheets.  Nor can tone or timbre.  To give artists and record companies protection against bootlegging of sound recordings, Congress updated the 1909 Act in 1974 to allow sound recordings to be copyrighted.  A related consequence is that composers became able to submit recordings of their songs as the form of deposit copy of the composition. They no longer needed to submit lead sheets or sheet music.  Plaintiffs suing to protect musical works that were so registered, or that will be in the future, should have a much easier time than did the plaintiff in the Stairway to Heaven case getting the jury to hear the recorded performance of their composition.  That is the only pro-plaintiff aspect of the decision. 

The Ninth Circuit’s Stairway to Heaven decision provides no protection to composers whose works were submitted in only written form.  This principle was applied in Williams v. Gaye, also known as the Blurred Lines case, where the plaintiff was not allowed to play an audio recording of Marvin Gaye’s hit Got To Give It Up and had to rely instead on the written deposit copy alone.  Nonetheless, the plaintiff prevailed.  

It did not take long for the Stairway to Heaven decision to affect other cases.  Just two weeks later, on March 25, a judge in the U.S. District Court for the Southern District of New York followed the Ninth Circuit’s decision in a case filed against singer-songwriter Ed Sheeran over his song, Thinking Out Loud. The judge ruled in his favor to limit the scope of the plaintiff’s copyright claim by not allowing the jury to hear Marvin Gaye’s recording of Let’s Get It On, limiting the claim to the elements in the written deposit copy.   


A Heightened Standard for Proving Originality 

The Ninth Circuit also clarified the law on the issue of originality, namely, whether a sequence consisting of only a few notes could be protectable at all.  In their ruling on the originality jury instructions, Judge McKeown wrote that “copyright does require at least a modicum of creativity and does not protect every aspect of a work; ideas, concepts, and common elements are excluded ….  Nor does copyright extend to ‘common or trite’ musical elements” such as “building blocks” like “descending chromatic scales, arpeggios or short sequences of three notes.”  Id. at 1082.  Those were the types of similarities the plaintiff had alleged that Stairway to Heaven borrowed from Taurus.  Those similarities are no longer sufficient.

Ten days later, a judge in the Central District of California threw out a jury’s finding of copyright infringement in a case brought against Katy Perry for her song, Dark Horse.  The judge held that the plaintiff’s eight note sequence was not protectable.  He went further than Judge McKeown: “Many if not most of the elements that appear in popular music are not individually protectable” because popular music, more than any other work of art, “borrows, and must necessarily borrow, and use much which was well known and used before.”  Gray v. Perry, No. 2-15-CV-05642 CAS, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020), at *4. 

As a result, plaintiffs are going to find it harder and harder to persuade a court to find such combinations of common elements to constitute protectable copyright subject matter, as opposed to common tools and building blocks for the composition of music.