The copyright in songs I – Stairway To Heaven case to return to Ninth Circuit appeals court

May 2020

COPYRIGHT: The Stairway To Heaven case will return to Ninth Circuit appeals court, with the court now sitting en banc to hear the plagiarism case.

Led Zeppelin are facing a legal action from the estate of songwriter Randy Wolfe (aka Randy California) that alleges that ‘Stairway To Heaven’ copies off a song written by Wolfe. In June 2016 Led Zeppling prevailed, with a jury concluding that ‘Stairway’ wasn’t sufficiently similar to Wolfe’s song ‘Taurus’. The Wolfe estate then appealed that ruling arguing that the jury had been been misdirected on copyright law the judge and last year the Ninth Circuit concurred with the estate, overturning the original judgement and ordering a retrial.

However the new decision means that rather than a retrial, the case will go back before a extended panel of judges in the Ninth Circuit, with oral arguments set to begin on 23 Sep.

One important point the appeal will be asked to determine is to establish the correct position in US copyright law should when two songs contain one or more of the same elements, but those elements are (arguably) common features in a genre of music. CMU Daily opines that it’s generally agreed that those common elements are not protected by copyright. However, “could the way in which those elements are employed enjoy copyright protection, and if so, does that mean there is a case for infringement if another song then copies that employment?”

A second point to be considered (and one that featured in the  ‘Blurred Lines’ litigation) is the perceived limitation that that copyright protects songs in the form they were originally filed with the US Copyright Office – and for older works that means the song as encompassed in he sheet music, rather than any recording of the song. This means that elements of a song that are not in the sheet music but which appear in the original recording will not enjoy copyright protection. The Wolfe estate argued that if the appeals court confirmed that copyright only protects any one song as it was originally registered it would be “devastating to songwriters who have owned their music for decades, only to be told … that they do not actually own most of their music created half a century ago”.

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