Led Zeppelin’s Stairway leads to the Ninth Circuit Appeal Court

December 2018

COPYRIGHT: From Hell to Heaven? Led Zeppelin have asked the Ninth Circuit appeals court to reconsider its recent ruling in the “Stairway To Heaven” copyright lawsuit ‘en banc’ to determine the law in the case that involves allegations that the 1971 classic is rip-off of the 1968 instrumental song “Taurus” recorded by Spirit and written by Randy “California” Wolfe’s whose estate brought the claim in 2016. The group’s representatives argue that by overturning the original judgement, the appeals court could “cause jurors to find infringement just because the same unprotected elements are present, upsetting the ‘delicate balance'” between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music”.

In June of 2016 year a Californian jury was asked to consider the claim. The jury noted that there was a good chance Robert Plant and Jimmy Page had heard the Taurus song before they wrote Stairway to Heaven, but found the two songs not to be sufficiently similar. Subsequently the jury found in favour of Led Zeppelin, holding that there was no infringement.  

In March 2017, the Estate of Randy California went on to appeal this ruling. In the Estate’s appeal it was claimed that the jury were not correctly directly by the judge. It also raised that issue that in US copyright law, only those elements which are registered are protected, meaning that the Taurus song’s sheet music was protected and not the latter recordings of the same.

Last month, the Ninth Circuit court of appeal sided with the Estate, holding that the judge had made errors in relation to ‘copyright technicalities’. This meant that the June 2016 ruling in favour of Led Zeppelin was overturned and the claim was to be re-heard.  The Estate explained “Today, we are proud that three esteemed jurists from the Ninth Circuit recognised the battle that we fought and the injustice that we faced.”

Led Zeppelin have now requested the Ninth Circuit Court of Appeal reconsider the decision made in favour of the Estate. It is argued that overturning the decision at first instance will interfere with the ‘delicate balance’ between copyright and music freedom.

Peter Anderson, for Led Zeppelin, has been quoted as arguing that “substantial evidence supports the jury’s verdict and Skidmore’s appeal has absolutely no merit.”

The ‘copyright technicalities’ referred to relate to the interpretation of the law when interpreting common elements in two songs. There is an argument that simply because two songs share common elements there cannot be copyright infringement, whereas on the other hand, it could be argued that the way in which the element has been use in the first song and featured in the second could constitute an infringement.

Led Zeppelin are of the firm opinion that unless the Ninth Circuit’s decision is corrected, it will “allow a jury to find infringement based on very different uses of public domain material”. Led Zeppelin go on to argue that the ruling is of “exceptional importance not only to music, but all creative endeavours, and en banc review is necessary to avoid the widespread confusion the panel decision will create”.

This is a case to watch for sure, will it resolve ‘copyright technicalities’? I hope so but I also think it will be a long stairway to copyright bliss.

Samuel O’Toole (www.lawditmusic.co.uk)

You can compare the two tracks here: https://www.youtube.com/watch?v=c_GTbH7H3Pc and there is an interesting analysis by TJR here https://www.youtube.com/watch?v=PCEg9gMJakU

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