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US Copyright Office and justice department intervene in Stairway To Heaven song-theft litigation

By | Published on Tuesday 20 August 2019

Led Zeppelin

America’s Copyright Office and Department Of Justice have submitted a so called amicus brief in support of Led Zeppelin in the ongoing song-theft lawsuit in relation to ‘Stairway To Heaven’. In it the government agencies urge the Ninth Circuit appeals court to uphold a lower court ruling that Led Zep did not infringe earlier work ‘Taurus’ when they wrote their 1971 classic.

Led Zeppelin, as you may remember, were sued by the estate of songwriter Randy Wolfe, aka Randy California. Its lawsuit alleged that ‘Stairway To Heaven’ ripped off Wolfe’s song ‘Taurus’. But the band successfully defeated the litigation in 2016 when a jury concluded that the two songs were not sufficiently similar to constitute copyright infringement.

The Wolfe estate then appealed that ruling in early 2017, arguing that the jury had been badly briefed by the judge, in particular regarding some of the complexities of American copyright law that were relevant to the case. The Ninth Circuit appeals court ultimately concurred with the estate, overturning the original judgement and ordering a retrial.

Though, before that retrial could happen in the court that originally heard the case, the Ninth Circuit announced it would consider the matter anew. This time en banc, so that more judges would be involved in the court’s deliberations.

It’s as part of that process that the Copyright Office and DoJ have now intervened. They argue that the original jury ruling was correct, and that the appeals court erred when they initially decided to overturn that judgement.

The new amicus brief deals with two copyright technicities that are very relevant to the case. First, the principle that says that only the version of ‘Taurus’ as filed with the US copyright registry enjoys copyright protection. And, as the song pre-dates 1978, that means just the sheet music version, as that’s all that could be filed when the song was written.

This point has come up in various American song-theft legal battles involving older songs, including the big ‘Blurred Lines’ case that is dissected in the first of a new series of Setlist specials on the top ten music legal battles of all time, which came out yesterday.

The Copyright Office and DoJ say that both the lower court and the Ninth Circuit were right to apply this principle in this case, so that only the version of ‘Taurus’ as filed with the copyright registry can be considered. But with that in mind, the amicus brief goes on, the Ninth Circuit was wrong to overturn the lower court’s conclusion that ‘Stairway’ and ‘Taurus’ are not sufficiently similar to constitute infringement.

It adds that, when you remove the similar elements of ‘Stairway’ and ‘Taurus’ that only appear in their respective recordings, not the accompanying sheet music, “the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale”.

Those elements, the brief argues “may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a ‘thin’ copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court’s judgment should be affirmed”.

This second technicality explored in the amicus brief applies to a wider range of song-theft legal battles, and not just those involving pre-1978 songs.

The government agencies are basically arguing that, although the specific selection and arrangement of basic musical elements may be protected by copyright, this should be treated as a very narrow form of protection. So that infringement only applies if someone else’s employment of that selection and arrangement is identical, or as near as.

Explaining why the Copyright Office and DoJ felt the need to intervene in this way, earlier in their amicus brief the two government agencies explain: “The United States has an interest in the proper interpretation of the copyright laws, which foster innovation and creative expression by protecting the rights of authors to profit from their original works while simultaneously allowing the creation and dissemination of new works”.

They then add: “The United States has a particular interest in this case because it concerns the legal effect of depositing a complete copy of a work with the Copyright Office, an agency of the federal government, as well as the standard for originality applied by the Copyright Office in examining and registering copyrighted works”.

It remains to be seen if interventions like this prove influential when the Ninth Circuit considers this whole dispute for a second time. And also whether that ruling – and government statements like these – impact on other song-theft disputes that are working their way through the American courts as we speak.