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Ninth Circuit upholds Led Zeppelin’s win in Stairway To Heaven copyright case

By | Published on Tuesday 10 March 2020

Led Zeppelin

The Ninth Circuit appeals court in the US has upheld the original ruling in the big Led Zeppelin song-theft case, concluding that the band’s classic ‘Stairway To Heaven’ did not infringe an earlier work called ‘Taurus’. The judgement confirms that in cases relating to pre-1976 music, the copyright in songs only extends to what was written in the sheet music registered with the US Copyright Office. It also rejects a thing called the ‘inverse ratio rule’.

Led Zeppelin, as you may remember, were sued by the estate of songwriter Randy Wolfe, aka Randy California, who had written the song ‘Taurus’ for his band Spirit.

The estate alleged that Led Zep had heard Spirit perform ‘Taurus’ before writing ‘Stairway’, and that the latter infringed elements of the former. But in 2016, a jury ruled that, while Led Zepp members probably had heard ‘Taurus’ before writing ‘Stairway’, the two songs were not similar enough to constitute copyright infringement.

The Wolfe estate appealed the following year, criticising some of the decisions made by the judge who oversaw the original case, including his refusal to allow recordings of the two songs to be played in court, and how he briefed the jury before they made their decision.

In 2018 the Ninth Circuit accepted some of the estate’s criticisms, overturning the original ruling and ordering a retrial. But before that could happen, the Ninth Circuit announced it would actually consider the case again, this time en banc, meaning a bigger panel of judges would take part. Both sides in the dispute had requested an en banc hearing, arguing that some key questions about American copyright law sat at the heart of the case.

It’s the Ninth Circuit sitting en banc that have now rejected the estate’s criticisms of the judge in the original jury case and reinstated that court’s ruling in Led Zepp’s favour.

Among the copyright technicalities discussed in the ruling is one that has come up in other American song-theft cases where someone is accused of ripping off on older work. Under US copyright law, the principle goes, songs are only protected in the form they are registered with the US Copyright Office. And for older works, only the sheet music representation of the song could be registered, so it’s the sheet music representation that matters.

This means that, if other elements were added to a song in its original recording, those other elements are not protected by the song copyright (the recording itself would be separately protected, but those elements would not be considered part of the song for copyright purposes). Which is annoying if the elements of your song that a third party has ripped off are in the original recording but not the original sheet music.

That’s why, in the original case, the judge declined to allow the Wolfe estate to play a recording of ‘Taurus’ in court. That decision, the estate argued, impacted on the jury’s subsequent decision that ‘Taurus’ and ‘Stairway’ were not sufficiently similar.

However, says the Ninth Circuit en banc, the judge nevertheless was right to not allow the sound recording of ‘Taurus’ to be played. “The scope of the copyright in the … work was defined by the deposit copy, which in the case of ‘Taurus’ consisted of only one page of music”, the judge wrote. “Accordingly, it was not error for the district court to decline plaintiff’s request to play sound recordings of the ‘Taurus’ performance that contained further embellishments or to admit the recordings on the issue of substantial similarity”.

Another copyright law technicality considered by the Ninth Circuit is called the inverse ratio rule. It’s a principle that says that – when weighing up if one song is sufficiently similar to another to constitute copyright infringement – you can consider how strong the case is that the alleged ripper-offer had access to the song they allegedly ripped off. The stronger the case for access, the less strict you need to be in assessing similarity.

If applied sensibly, it’s not a stupid concept. For example, it could be used to distinguish the ‘Blurred Lines’ song-theft case – where Pharrell Williams almost certainly had ‘Got To Give It Up’ on his mind when he wrote his hit – from the ‘Dark Horse’ case – where Katy Perry and her collaborators might possibly have heard earlier track ‘Joyful Noise’ on YouTube. By employing the inverse ratio rule, the similarity between ‘Dark Horse’ and ‘Joyful Noise’ would have to be much stronger than in the ‘Blurred Lines’ dispute.

However, in the original ‘Stairway’ case, the judge did not explain the inverse ratio rule to the jury before they began their deliberations, much to the annoyance of the Wolfe estate. Because they believe that had the ruled applied, they’d have had a better chance of winning.

Employment of the inverse ratio rule has varied in courts across America. In those courts covered by the Ninth Circuit the rule has been applied in some cases. Although even their use of the principle has been inconsistent. With that in mind, the appeals court ruled that the judge in the original case was correct to not explain this principle to the jury.

Seeking to set a precedent on this matter within their jurisdiction, the appeals court judges wrote: “Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary”.

So there you go. Older songs are only protected as represented in the sheet music logged with the Copyright Office. And the reverse ratio rule can fuck off.

There has, of course, been concern in the music community that the American courts have, of late, become too willing to see copyright infringement where you have two songs that share common musical elements. The ‘Blurred Lines’ case and the still-being-appealed ‘Dark Horse’ litigation are stand out judgements in that domain.

The original ruling in the Led Zep case was, therefore, welcomed by many in the music community, given it swung the other way. For those people, this decision of the Ninth Circuit to now uphold that original ruling will be good news, as is the court’s various decisions on technicalities like the inverse ratio rule.

Jeff Brown, an IP and entertainment attorney at US law firm Michael Best, tells CMU that “the appellate ruling is significant – not only for Led Zeppelin and the decades running rock debate over whether Led Zeppelin’s ‘Stairway To Heaven’ opening riff copied Spirit’s song ‘Taurus’ – but for the impact this ruling will have on future copyright infringement claims involving songs and other creative works”.

As well as rejecting the inverse ratio rule which, Brown says, “had the effect of establishing a lower burden to prove infringement of a popular work”, the appeals court, he then notes, also stated that “we have never extended copyright protection to just a few notes – instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression of a song”. Conclusions like that, Brown adds, means “this ruling might serve to tame plaintiffs who had taken encouragement from the ‘Blurred Lines’ decision”.

Although, it has to be said, this particular rock n roll copyright squabble may not yet be at an end. According to Law360, the estate’s lawyer, Francis Malofiy, has said that he and his client are “evaluating our paths forward”, adding “this fight is by no means finished”.

“The en banc panel decision is contrary to the law”, Malofiy stated yesterday, “and enforces incoherent and imaginary technicalities instead of allowing the songs at issue to be compared on the merits. Copyright law suffers as a result of this opinion”.