Led Zeppelin won’t face a second trial over allegations the group stole part of its 1971 classic “Stairway to Heaven” from an obscure instrumental track by a 1960s California band.
In a rare so-called en banc decision Monday, 11 judges of the federal court of appeals in San Francisco let stand a 2016 jury verdict in favor of Led Zeppelin. A smaller panel of the same appeals court had previously thrown out the verdict after finding jurors had received faulty instructions from the trial judge.
The decision will come as a relief to the music industry, which has almost universally backed Led Zeppelin against claims that the opening chords of “Stairway to Heaven” were based on the 1968 song “Taurus” by the band Spirit. Recording companies and songwriters feared the reversal of the jury verdict would lead to a flood of new copyright infringement lawsuits based on the use of common musical elements.
The court rejected as “garden variety” the argument by the estate of late Spirit guitarist Randy “California” Wolfe, which brought the lawsuit in 2014, that the songs were similar based on the combination of five common musical elements.
“Semantics do not characterize legal arguments — substance does,” Circuit Judge M. Margaret McKeown wrote for the majority. She said the plaintiffs failed to show how the common elements they cited formed a selection and arrangement worthy of copyright protection.
‘Random similarities’
“These disparate categories of unprotectable elements are just ‘random similarities scattered throughout [the relevant portions of] the works,’” the judge wrote, quoting in part from another ruling. “Labeling them a ‘combination’ of unprotectable elements does not convert the argument into a selection and arrangement case.”
Francis Malofiy, the Philadelphia-area lawyer who filed the lawsuit, said in a telephone interview he would appeal the ruling, possibly to the U.S. Supreme Court. “I’m disappointed,” he said. “It’s a victory for the music industry against creators.”
The en banc decision also upheld rulings by the trial judge and a three-judge appellate panel that, under the law at the time, the copyright to “Taurus” only pertained to the sheet music and not to the actual recording.
Those rulings meant the jurors only heard a bare-bones version based on the sheet music for the track, not the album version. Wolfe’s estate argued that changes to U.S. copyright law in the 1970s extending protection to recordings should have applied in the case and jurors could not accurately gauge the similarities between “Taurus” and “Stairway” without hearing the version Led Zeppelin would have encountered.
Wolfe’s trust contended at trial that Led Zeppelin would have heard Spirit play “Taurus” during occasions when the bands played together, including at Led Zeppelin’s first U.S. show in Denver in 1968 and at later rock festivals. Led Zeppelin founder and lead guitarist Jimmy Page testified that he only became aware of “Taurus” in recent years after his son-in-law alerted him to comparisons of the songs posted on the Internet.
Jury verdict
The jury in Los Angeles deliberated for one day in June 2016 before rejecting the claims that “Stairway” was a ripoff of “Taurus.” The jurors unanimously agreed Led Zeppelin didn’t use anything that was unique and original in Wolfe’s composition.
Federal appeals courts typically only agree to hear cases en banc when they determine important legal issues are at stake. The previous decision ordering a new trial had prompted an outcry by record labels and a number of songwriters.
They said a finding that the longer, more complex “Stairway” copied “Taurus” would expand copyright protection to commonplace musical elements like sequences or scales. These are typically considered the basic building blocks of compositions but not original works themselves. A music expert testified for Led Zeppelin at trial that the chords at issue had been used by musicians for hundreds of years.
The industry feared a ruling in favor of the plaintiffs would influence judges in other cases and invite a tide of new lawsuits.
A federal judge in New York put a copyright lawsuit accusing Ed Sheeran of stealing from Marvin Gaye’s “Let’s Get It On” on hold until the San Francisco appellate court had decided if the sound recording of “Taurus” was admissible evidence in the Led Zeppelin case.
The case is Skidmore v. Led Zeppelin, 16-56057, U.S. Court of Appeals for the Ninth Circuit (San Francisco).
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