Tuesday, June 28, 2016

The Song Remains the Same: Jury Finds for Led Zeppelin in Stairway to Heaven Case

Copyright Suit Fails To Take Off, But Zeppelin Is Flying High

A federal court jury in Los Angeles last week found in favor of Robert Plant and Jimmy Page of Led Zeppelin, concluding that the iconic rock anthem Stairway to Heaven did not infringe the copyright of the song Taurus by the band Spirit.

Under copyright law, an author of an original work of expression who sets it down in a tangible medium (like a book, a recording, a movie, or even a blog post) has exclusive rights to exploit that work during the term of the copyright. The key issues for this lawsuit were whether Led Zeppelin had access to Taurus and copied from it, and thereby infringed the copyright holder's exclusive rights. While the jury found there was access, they found that there was no prohibited copying. (For more on copyright law, the U.S. Copyright Office has a good primer here.)

While the verdict was welcomed by the defendants, I am sure that they were not too excited about going to California for the trial, especially after the judge ruled prior to trial that although the two songs were not strikingly similar, a jury could conclude that they had access to Taurus and that the songs were substantially similar. Had they lost it would have been a real heartbreaker, but instead the day of the jury verdict was a celebration day.

The suit presented some interesting facts. First, the Taurus songwriter made the claim in the early 1990s that Led Zeppelin used the song but never brought suit. It was his estate that filed the suit in 2014, after the Supreme Court ruled that copyright infringement cases could proceed even after long delays. Second, the recording itself was not at issue, only the musical composition, as the copyright law did not protect sound recordings at the time. Third, there was testimony that the two bands had appeared on the same concert bill on a few occasions. Fourth, Jimmy Page admitted that he owned a copy of the album that contained Taurus.

The judge allowed the claim to go to trial because he found there was enough "similar protectable expression" in the first two minutes of each song to allow a jury to assess if they were substantially similar -- which the jurors did not find. At least to my untrained ear, they sound quite similar starting about 44 seconds into Taurus. In fairness, Stairway to Heaven clocks in at about 8 minutes and Taurus at about 2 minutes, 37 seconds. In other words, viewed as a whole, Zeppelin's song -- the Moby Dick of classic rock and roll anthems -- has a lot more to it than the classic opening. Want to listen for yourself? Here are links to Stairway to Heaven and Taurus:







This scenario is not atypical in music, and the case law is replete with similar claims of copying. I recall a famous musician saying years ago that there are only so many chords and so many ways to arrange them. And like all art, music inspires others; indeed, some songs are intended to pay homage to the original. The infringement occurs, however, when the line is crossed from inspiration and homage to copying. 

How many times have you listened to a song and thought that it sounded like another song? Tom Petty described this phenomenon last year, when word emerged that Sam Smith had agreed to credit Petty and Jeff Lynne of ELO for songwriting on Smith's hit song Stay With Me because it sounded like Petty's hit I Won't Back Down. Here is what he had to say:
About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam's people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all.
One of the more famous copyright cases involving music is the suit against George Harrison claiming that his 1970 solo breakout hit, My Sweet Lord, infringed the copyright of the 1962 hit He's So Fine by the Chiffons. Harrison went on to lose the case and was found liable for "subconscious infringement." Here is what the judge said:
Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
In response to his experience, Harrison wrote This Song, which provides his take on the affair. It is a fun song and commentary, and here it is:



By the way, I was going to title this blog post "And Now for Something Completely Different," but I was not sure if Monty Python would claim copyright infringement and sue me. . . .

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