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It seems only fitting that the most epic and dramatic of rock songs has resulted in one of the music industry’s most epic copyright fights.
“Stairway to Heaven,” Led Zeppelin’s 1971 megahit, defined rock radio for decades and helped make its credited writers, Jimmy Page and Robert Plant, extremely rich. For the last five years, it has been caught up in a copyright infringement case that has gripped the music industry. In a hearing scheduled for Monday, a panel of 11 federal appellate judges in San Francisco will delve into the song’s authorship.
At issue is who wrote the song’s famous acoustic opening passage — Mr. Page and Mr. Plant, or Randy Wolfe of the 1960s psychedelic band Spirit. A larger question that could be settled by the court concerns what, exactly, constitutes an original song.
With the music industry shaken by copyright decisions in recent years — like the $2.8 million award that the creators of Katy Perry’s hit “Dark Horse” were ordered last month to pay to a Christian rapper — the Led Zeppelin case has become a cause célèbre for songwriters, intellectual-property lawyers and even the Trump administration, which took the unusual step of filing a brief in support of Led Zeppelin.
Cases involving “Stairway to Heaven,” “Dark Horse” and Robin Thicke’s “Blurred Lines” have raised questions about which aspects of music can be protected by copyright and which are fair game. Legal experts and music executives alike are hoping for a clarification from the judges of the United States Court of Appeals for the Ninth Circuit, who will hear the Led Zeppelin case “en banc,” or as a full panel.
“Appeals courts rarely take a case en banc, and they almost never do so in a copyright case,” said Joseph P. Fishman, an associate professor at the Vanderbilt Law School in Nashville. “So there’s some possibility that the court may take a big swing here.”
Original material vs. generic ‘building blocks’
In 2014, a trustee for Mr. Wolfe’s songs sued Mr. Page and Mr. Plant, accusing them of stealing the opening to “Stairway to Heaven” from “Taurus,” a 1968 Spirit song written by Mr. Wolfe, who died in 1997. Mr. Page and Mr. Plant beat the challenge at trial in 2016.
Since then, the case has had a complex history. Last year, an appellate court ordered a new trial, saying the jury had not received proper instructions. But then the Ninth Circuit judges voted to hold a new appeal en banc.
Almost anyone who listens to the two songs would say they bear at least some resemblance to each other. But the “Stairway to Heaven” lawsuit is about composition, not how the song was recorded. Filter out the audio production and performance flashes from Led Zeppelin’s eight-minute studio version, and what remains are the song’s basic melodies, chords and structure. Are they similar enough to “Taurus” to make it a copy?
Questions like that can be difficult for a lay juror to answer. And many litigators and copyright scholars say music cases are especially complex, since they often come down to whether a song’s composition is truly original or draws on elements so common that they are available to any songwriter.
“Music copyright infringement cases are infinitely more difficult than any other kind of copyright infringement case, period,” said Paul Goldstein, a professor at the Stanford Law School who is an expert in copyright law.
At the 2016 trial, Led Zeppelin’s lawyers argued that what little the two songs had in common — similar chord progressions and a descending chromatic scale — had popped up in music for over 300 years. Mr. Page even testified that “Stairway to Heaven” was reminiscent of the “Mary Poppins” song “Chim Chim Cher-ee,” from 1964.
Four decades later, a plagiarism claim
Why did the plaintiffs wait more than 40 years after “Stairway to Heaven” was released to bring the case? For one thing, the wishes of the author of “Taurus” were unclear.
Mr. Wolfe, a singer, songwriter and guitarist nicknamed Randy California by his friend Jimi Hendrix, had long disapproved of “Stairway to Heaven,” calling it “a rip-off” in an interview shortly before he died. But he never sued.
After his death, his song rights were placed in a trust now controlled by Michael Skidmore, a music journalist. According to Bloomberg Businessweek, Mr. Skidmore considered suing but was discouraged by a longstanding statute of limitations.
In 2014, the Supreme Court offered an opening when it ruled — in a case involving the film “Raging Bull” — that copyright suits could be brought even after long delays. Two weeks after that decision, Mr. Skidmore’s lawyer, Francis Malofiy, filed suit, arguing that “Stairway to Heaven” copied “Taurus.” He also threw in the novel claim of “falsification of rock ’n’ roll history,” which was dismissed.
The music industry is watching
After recent plagiarism cases like the one centered on the 2013 hit “Blurred Lines,” in which Mr. Thicke and Pharrell Williams were ordered to pay $5.3 million to the family of Marvin Gaye, many people in the music industry cheered the “Stairway to Heaven” verdict and have rallied behind Led Zeppelin.
“This is the one time that a jury gets it right,” said Edwin F. McPherson, a music industry litigator. “And the Ninth Circuit panel says, ‘No, we need to get it wrong!’”
Yet Led Zeppelin is an imperfect champion for originality in songwriting. Critics have long accused the band of brazenly borrowing from blues musicians and other artists. Over the years, Led Zeppelin has settled many infringement claims, with the results scattered on decades’ worth of changes to their song credits.
When the band’s self-titled debut came out in 1969, for example, the fine print on the label listed Mr. Page as the sole composer of the song “Dazed and Confused.” By the time that album was reissued in 2014, the credits added “Inspired by Jake Holmes,” after a singer who in 1967 had a similar song with the same title and had filed his own infringement suit.
Is music like a phone book?
One issue in the “Stairway to Heaven” case that has drawn contentious arguments ahead of the hearing is how much copyright protection a piece of music should get if it includes generic-seeming elements like common chord progressions but puts them together in a creative way.
In its brief on the “Stairway to Heaven” case, filed last month, the Justice Department argued that such a work should deserve only “thin,” or minimal, protection “that protects only against virtually identical copying.”
One example of this kind of work is a phone directory. The names and numbers in it cannot be copyrighted, but the overall book can have a narrow copyright, based on how the publisher assembled and laid out the material, as the Supreme Court ruled in a 1991 case that the Justice Department brief cited.
That reference caught many legal scholars by surprise. Are melodies and chords really comparable to the gray columns of numbers in a phone book?
“That is really the first time I’ve seen that argument made in those terms,” Professor Goldstein said.
The government further argued that, for an older song like “Taurus,” the copyright should be limited to the content of the song’s “deposit copy” with the Copyright Office — often a simple sketch of a song’s melody and lyrics.
Mr. Malofiy, the lawyer for the “Taurus” trustee, said in an interview that the Justice Department’s argument reflected a misreading of copyright law. If a song like Spirit’s “Taurus” deserves only “thin” protection, he said, songwriters whose work was copied will have a more difficult time getting the courts to recognize their claims.
And that, Mr. Malofiy said, “would amount to the largest art heist in U.S. history.”
Peter J. Anderson, a lawyer for Led Zeppelin, declined to comment.
After the Monday hearing, the judges may take months to issue their decision, and even then the case could drag on — even to the Supreme Court, Mr. Malofiy said. Still, many observers are hoping for clear answers to some basic questions concerning music copyright.
“The appellate court in the ‘Stairway’ case has the chance to provide more clarity,” Professor Fishman said, “on which kinds of musical borrowing are permissible and which aren’t.”
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