A Ninth Circuit ruling siding with Led Zeppelin in its copyright battle over “Stairway to Heaven” could erect more legal hurdles for future plaintiffs pursuing infringement claims against large music labels.
The U.S. Court of Appeals for the Ninth Circuit rescinded its “inverse ratio rule,” which some attorneys said made it easier for courts to find that famous works infringe on more obscure ones. The rule held that a party’s requirement to show similarity is lowered when it can produce more evidence of the infringer’s access to its original work.
The appeals court, whose jurisdiction includes the music publishing hotbed of Los Angeles, also upheld a trial court’s decision not to let a jury hear the full recording of the allegedly infringed song —the band Spirit’s “Taurus.”
The full court reversed its three-judge panel’s ruling and affirmed a jury’s conclusion that Led Zeppelin didn’t infringe on “Taurus.” The ruling could help recording companies and artists better fend off copyright infringement lawsuits, attorneys say.
“This could have the impact of making copyright plaintiffs have to demonstrate a little bit more in terms of similarity,” said copyright attorney Wesley Lewis of Haynes and Boone LLP, who often defends media companies against infringement allegations. “There are areas where we’ve seen a trend of lowering the bar for similarity in copyright infringement cases.”
Infringement or Inspiration
The trial court’s decision to allow the jury to only hear a neutral party playing “Taurus” from the sheet music—a decision that was affirmed by the Ninth Circuit—was based on its reasoning that the Copyright Act of 1909 only protects sheet music. The law was amended in 1976 to include sound recordings, but that change was made after both songs were recorded.
The court’s decision leaves older music vulnerable to exploitation, copyright attorney Tre Lovell of the Lovell Law Firm said.
“Led Zeppelin didn’t hear the sheet music; they heard the song,” said Lovell, who generally represents infringement plaintiffs. “From a substantial similarity standpoint, it’s somewhat draconian, and puts at future risk these older songs. What happens if you steal a song from the 60s, early 70s, and have to prove your case and you’re limited to sheet music?”
The appellate panel said the song should have been played, though to support Spirit’s claim that Led Zeppelin had accessed to it, rather than to compare the works. The estate of late Spirit guitarist Randy “California” Wolfe, which sued Led Zeppelin in 2014, claimed the bands had played together in the 1960s. The trial court and full Ninth Circuit said that clearly established access, so playing the sound recording, which isn’t protected by Spirit’s copyright, would prejudice a jury.
That’s “very problematic,” Lovell said. Copyrights are often enforced across mediums because the law protects a creator’s rights to derivatives, such as when a novelist needs to approve a movie based on the book, he said. Strictly limiting evidence to sheet music —which doesn’t always fully reflect the art—could embolden artists to liberally copy parts of the recordings, he said.
“If you look at music, they don’t sell sheet music. The logical conclusion is that if there’s going to be infringement, it emanates from the sound recording everyone hears,” said Lovell. “People aren’t going out and buying sheet music of Taylor Swift. They’re listening to songs.”
But copyright owners generally benefit from the ruling, copyright attorney Rachel Fertig of Morgan, Lewis & Bockius LLP said. Broad protections for a limited deposit—the material submitted to the Copyright Office— like sheet music could overextend protection to building blocks that could be used by other creators for new works, she said. The ruling “sees the forest for the trees in terms of what’s in the best interest of copyright going forward,” she said.
“We need to be able to let creators take inspiration of all the creativity that has gone before them, and not take this case and say the fundamental elements are subject to copyright protection,” Fertig said.
Access ‘Never Enough’
The Ninth Circuit had been chipping away at the inverse ratio rule, attorneys say. The court edited a 2018 ruling affirming that “Blurred Lines” by Robin Thicke and Pherrell infringed Marvin Gaye’s “Got to Give It Up” to remove a reference to the rule. That spurred some attorneys to question if the rule was on its way out.
The court noted that the rule becomes even harder to apply in copyright cases with widespread internet access to most works.
Eliminating the oft-criticized rule is the largest case law change from the opinion, attorneys say. But in practice, attorneys still have to show similarity between the original work and the allegedly infringing one, Fertig said.
“Access was never going to be enough,” she said.