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Led Zeppelin Copyright Fight Goes Under Full Court’s Microscope

Sept. 24, 2019, 12:21 AM

Attorneys for Led Zeppelin and for the trust of a musician accusing the legendary rock band of copyright infringement tried to convince the full Ninth Circuit of their vastly different interpretations of a panel’s revival of their infringement dispute.

Francis Malofiy of Francis Alexander LLC, representing late Spirit guitarist Randy Wolfe’s trust, argued Sept. 23 that a trial jury should have heard a recording of “Taurus” to determine whether “Stairway to Heaven” stole elements of it. Led Zeppelin’s attorney, Peter Anderson of Davis Wright Tremaine LLP, faulted Wolfe for not registering the version of the work he wanted protected and for seeking protection for basic music elements rather than a melody or sequence of notes.

The case has garnered interest from songwriters, law professors, and the U.S. government, which also took part in the en banc oral argument. It tests the boundaries for whether anything beyond the written sheet music registered with the U.S. Copyright Office, known as the deposit copy, can be used to compare works in an infringement case—a question not directly addressed by case law.

The 11-judge panel of U.S. Court of Appeals for the Ninth Circuit probed Malofiy over his contention that a new jury should hear the recording, while questioning Anderson’s logic for defending the instructions given to the first jury that a three-judge appellate panel deemed faulty enough for a retrial.

The judges also appeared to probe the boundaries of how similar two songs have to be to establish infringement in music, copyright attorney Ilene Farkas of Prior Cashman LLP. She said the Ninth Circuit seems to sometimes deviate from the way other media is evaluated, protecting smaller building blocks.

“Presumably the reason the Ninth Circuit granted the case is that they do want to address these issues. There seems to be enough of a broader impact on music copyright law,” Farkas said.

Court Questions

Wolfe sued Led Zeppelin in 2014 for allegedly using elements of “Taurus” in the opening guitar riff of “Stairway to Heaven”, but a district court jury found that Zeppelin didn’t infringe Wolfe’s copyright in “Taurus” composition after comparing the deposit copy to “Stairway.”

But nothing in case law precluded the jury from hearing recordings of both songs, Malofiy told the full court. He argued that only analyzing the deposit copy rather than the “composition embodied in the sound recording” prejudiced the jury against Wolfe’s trust and created an “artificial analysis.”

Deposit copies are supposed to represent the best example of the work being protected. In this case, the deposit copy is an “inaccurate transcription” of the composition, he said.

Circuit Judge Susan Graber questioned if there were other cases that “jump through all of those hoops that you want us to jump through” to discount the deposit copy. Upon questioning from the judges, Malofiy admitted Wolfe’s copyright claims aren’t viable if the court only analyzes the deposit copy and doesn’t listen to the actual songs.

Led Zeppelin’s lawyer argued that, “at no point in this case” did Wolfe “ever take the position that the deposit copy was in error.” And he defended the trial judge’s instruction about what constitutes copyright infringement.

A three-judge Ninth Circuit panel had said the trial judge erred by not telling the jury that the “selection and arrangement” of unprotectable musical elements could be copyrighted. It also found the trial judge erred by not allowing a recording of “Taurus” to be played for the jury. Playing the recording would have allowed the jury to “evaluate [Led Zeppelin guitarist Jimmy Page’s] demeanor while listening to the recordings,” which probed the question of whether Page had access to the copyrighted work, the panel said.

But the panel found that error was harmless because the jury decided Page had access to “Taurus” and that only the deposit copy could be considered for questions on similarity. It upheld the judge’s decision not to let the jury hear the works to compare the works.

Department of Justice attorney Daniel Tenny argued that Wolfe could have added to his protection by registering a new deposit after a change in copyright law in 1976 permitted deposits of sound recordings to document compositions. But this case only covers the deposit copy, he said.

Tenny also said the “Taurus” riff was only eligible for “thin” copyright protection because there are limited ways to combine unprotectable elements like its “chromatic scale with an A minor chord.”

Even if the court sends the case back down with orders to fix the jury instructions, the trial judge won’t necessarily find that jurors can listen to the recording of “Taurus,” according to copyright attorney David Leitchman of Leitchman Law PLLC.

The case is Skidmore v. Led Zeppelin, 9th Cir., No. 16-56057, oral argument held 9/23/19.

To contact the reporters on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com; Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com; Rebecca Baker at rbaker@bloomberglaw.com