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US Supreme Court asked to intervene in Stairway To Heaven copyright dispute

By | Published on Thursday 13 August 2020

Led Zeppelin

The estate of the late Randy Wolfe has officially marched up to the doors of the US Supreme Court to request that the American judges most supreme intervene in the long running ‘Stairway To Heaven’ song-theft case. Allowing the most recent ruling on that matter to stand would be, the estate reckons, “a disaster for the creatives whose talent is often preyed upon”.

A quick recap. The estate of Randy Wolfe, aka Randy California, first sued Led Zeppelin in 2014. They said that the band’s ‘Stairway To Heaven’ ripped off an earlier song called ‘Taurus’, which Wolfe had written for his band Spirit. But in 2016 a jury ruled that, while it may be true that Led Zepp members had heard ‘Taurus’ before writing ‘Stairway’, the two songs were not – in fact – similar enough to constitute copyright infringement.

The estate then took the matter to the Ninth Circuit appeals court criticising various decisions made by the judge in the original jury trial. The appeals court initially concurred with the estate and ordered a retrial. But then it reconsidered the matter en banc – with more judges involved – and that time decided that the original ruling in Led Zepp’s favour should stand.

Which is why the estate now wants the Supreme Court to get involved. In a filing to the top court earlier this month, the estate says that the Ninth Circuit made two mistakes in its second ruling, the first relating to what elements of a song enjoy copyright protection, the second regarding what constitutes originality under copyright law.

The first of those bugbears relates to the idea that, in the US, a song is only protected by copyright in the form that it was filed with the US Copyright Office. That’s an issue for older songs, because it used to be that only sheet music could be filed when a song was registered, not a recording of said song. And sheet music doesn’t always represent all the elements of a song as it appears in its original recording.

In this case – and others – some or all of the the elements that one song is accused of ripping off from another are contained in the original recording but not the original sheet music. Therefore, the Wolfe estate argues, this idea that only the song as contained in the sheet music should be protected is a bad idea that should be rejected. And this month’s legal filing opens with a rather novel critique of that concept.

The filing states: “1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918, 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1926, 1927, 1928, 1929, 1930, 1931, 1932, 1933, 1934, 1935, 1936, 1937, 1938, 1939, 1940, 1941, 1942, 1943, 1944, 1945, 1946, 1947, 1948, 1949, 1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1961, 1962, 1963, 1964, 1965, 1966, 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974, 1975, 1976, 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 represent the 106 years that the courts of this nation recognised that musical works were protected as created and fixed in a tangible medium under the Copyright Act of 1909 – and that the deposit requirement was a technical formality”.

“In those 106 years”, it goes on, “not one copyright trial was limited or controlled by the deposit, which was usually an incomplete outline of the song. The Ninth Circuit’s en banc decision, holding that only paper sheet music deposits have copyright protection under the 1909 Act, will likely divest hundreds of thousands of songs of copyright protection”.

On the originality point, the issue relates to when you have common musical elements not protected by copyright that have then been employed and a arranged in a specific way. While the common elements themselves are not protected, could the arrangement have protection? The Wolfe estate reckons it could, and – they argue – so did US copyright law, until the Ninth Circuit ruling.

Citing the 1991 Supreme Court case Feist Publications v Rural Telephone Service Co, it states: “Originality is a constitutional requirement for copyright protection, but is an extremely low bar. Selection and arrangement allows for the protection of combinations of otherwise unprotectable elements as long as the combination is original. Both concepts have widely and faithfully been applied since Feist by all the courts of appeal”.

“The Ninth Circuit’s en banc opinion, however, redefined originality”, it argues on, “significantly heightening the requirement in contradiction to Feist. It also held that selection and arrangement is not a necessary instruction for the extrinsic test”.

Should the Ninth Circuit, the estate asks, be allowed to “fundamentally alter wide swaths copyright precedent regarding the extrinsic test – namely originality, and selection and arrangement – in a way that directly challenges binding Supreme Court precedent to the contrary?”

Urging the Supreme Court to now intervene, the estate seeks to present this not as a dispute between fellow artists, but as a battle between the creator and the corporates of the entertainment business.

Employing emotive language, the legal filing states: “The [Ninth Circuit] opinion is a disaster for the creatives whose talent is often preyed upon. By the same token, it is a gift to the music industry and its attorneys – enthusiastically received – by a circuit whose own judge once observed: ‘Our circuit is the most hostile to copyright owners of all the circuits'”.

“The ‘court of appeals for the Hollywood Circuit’ has finally given Hollywood exactly what it has always wanted: a copyright test which it cannot lose. Portending what is to come, in the days following the decision’s filing multiple major copyright rulings have already dramatically favoured industry defendants. The proverbial canary in the coal mine has died; it remains to be seen if the miners have noticed”.

Of course, there are plenty of artists and songwriters at all levels who believe the ‘Stairway’ ruling was the right ruling, having previously been concerned about the precedent set in the big ‘Blurred Lines’ song-theft case, and the impact it could have not only on the corporate exploitation of music rights, but also the creative process.

Those music-makers – as well as record labels, music publishers and music lawyers – will now all be watching with interest to see whether the Supreme Court agrees to hear the big ‘Stairway To Heaven’ copyright case.