by Lee Gesmer | Dec 21, 2018 | Copyright
I first posted on Capitol Records v. Redigi in March 2012 (Redigi Case Poses A Novel Copyright Question on the Resale of Digital Audio Files – Is “Digital First Sale Legal? Link), and posted a number of follow-up articles on this interesting case. Absent an appeal to the Supreme Court this long-running copyright case has finally come to an end with the Second Circuit’s December 12, 2018 decision holding that Redigi infringed the exclusive copyright right of reproduction with respect to the “second-hand” digital music files it sold via the Redigi system.
To understand this case it’s important to appreciate how Redigi’s system works. I explained this in detail in the post linked above, and the Second Circuit opinion describes it quite thoroughly as well. In short, Redigi acts as a broker for music files purchased and downloaded from iTunes. Redigi uploads a seller’s music file to its own server and offers it for sale, deleting it from the seller’s computer, although the seller can continue to stream the file until it is sold. When a buyer selects it for purchase, it is retitled in the name of the buyer, and the seller loses access to it. The buyer may then stream or download the file to her computer or device.
Redigi’s service irritated the record companies no end, and they sued for copyright infringement, asserting that Redigi was engaging in copyright infringement. Redigi, relying on the “first sale” doctrine, argued it did not.
The copyright first sale doctrine is an important exception to the copyright exclusive right of “distribution.” It allows the owner of a copyrighted work to sell the copy or phonorecord in which the work is fixed. This explains the existence of markets for second-hand books, records and CDs.
Redigi argued that its service fell within the protection of first sale. The record companies argued that this analogy was inapt, since Redigi was not distributing the original file, but reproducing it on its server and on the buyer’s computer.
The federal district court ruled in favor of the record companies (decision here and the Second Circuit (in an opinion written by Judge Pierre Leval, the Second Circuit’s prolific and influential copyright judge) agreed, reasoning as follows:
In the course of transferring a digital music file from an original purchaser’s computer, through ReDigi, to a new purchaser, the digital file is first received and stored on ReDigi’s server and then, at the new purchaser’s option, may also be subsequently received and stored on the new purchaser’s device. At each of these steps, the digital file is fixed in a new material object . . . The fixing of the digital file in ReDigi’s server, as well as in the new purchaser’s device, creates a new phonorecord, which is a reproduction . . . ReDigi’s server and the resale purchaser’s device on which the digital music files are fixed constitute or contain new phonorecords under the statute. (Emphasis added)
Redigi also argued (half-heartedly, it seems) that its system was protected by fair use, but this was an obvious loser. First, Redigi cannot show that it’s system is transformative. Second, Redigi makes identical copies of the whole copyrighted sound recording, which cuts against fair use. Third, the reproductions created by Redigi are sold in competition with the market for the original sound recordings, another negative factor. Each of these factors weighed against fair use, and Redigi lost on its fair use defense as well.
The bottom line: Redigi is enjoined from operating its service, and the company and its founders are on the hook for $3.5 million.
In an interesting postscript to this case, Redigi has developed a new methodology (“Redigi 2.0”) which allows a user to place a music file in the Redigi cloud server in the first place (it’s never downloaded to the user’s computer) and then simply transfer ownership to that file. Under this system Redigi never makes a copy (or enables users to make a copy), so it may not infringe the reproduction right. However, as part of a stipulated injunction in the district court Redigi agreed not to implement Redigi 2.0, and therefore its unclear whether the legality of this system will ever be tested in the courts.
Here’s my non-exhaustive take on how digital music files are treated under copyright law post-Redigi:
- You purchase a CD that contains a digital music file authorized for sale by the copyright owner. You may sell it under first sale.
- You legally download a copyrighted music file to your computer and you transfer it to your smart phone for your personal use. This form of “space-shifting” is permitted based on fair use. Capital Record’s lawyer conceded this during oral argument before the district court in Redigi, and the Second Circuit commented on it favorably (in dicta) in its decision. It’s worth noting that the record companies have never sued a consumer for space-shifting legally acquired music files for personal use.
- You legally download a music file to your computer and then upload it to a cloud service so you can stream it on your smart phone or speaker (e.g., an Amazon Echo). This is permitted based on fair use.
- You purchase a device preloaded with music files authorized by the copyright owner. You can sell the device based on first sale, since this is a distribution, not a reproduction.
- You download music files to your computer and sell your computer with your files on it. This is protected by first sale.
- You download copyright-protected music files to your computer, transfer them to a thumb drive and delete them from your computer (i.e. “copy and delete”). You then sell the thumb drive. This is not protected by either first sale or fair use – based on Redigi this is an illegal reproduction.
- You legally download a music file to your computer, upload it to a cloud service, and then give your password to 25 of your closest friends or college dorm-mates so they can stream it. This is a violation of the copyright rights of reproduction, distribution and public performance. You lose.
Capitol Records LLC v. Redigi, Inc. (2nd Cir. Dec. 12, 2018)
Update: the Supreme Court denied review of this case, leaving the Second Circuit’s decision as the final word.
Footnotes:
by Lee Gesmer | Dec 13, 2018 | Copyright
Every few decades Congress enacts a major amendment to the U.S. Copyright Act. We are at one of those inflection points now. On October 11, 2018 the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (the “MMA”) was signed into law. (click here for full text of the law)
This is a massive, game-changing law for digital music distribution, and it may take years for it to be fully integrated with the complex U.S. music copyright system. But, if you’re at a holiday party this season and someone insists on discussing the MMA with you, this blog post will give you a few talking points.
From a 40,000 foot level the MMA does three things.
First, and most importantly, it completely revamps the U.S. mechanical licensing system for interactive digital streaming services and digital downloads by shifting the burden of identifying composers from the services to the composers themselves. This is a huge benefit to the digital music services, who in the pre-MMA era were responsible for locating composers entitled to royalties but often failed to do so, creating an enormous potential liability for copyright infringement.
Second, it requires interactive streaming services to make royalty payments to owners of pre-1972 sound recordings for the first time.
And third, it authorizes and facilitates payments to non-musicians who contribute to sound recordings, such as producers and sound engineers.
Before proceeding bear in mind that this law is very complex – the MMA itself is 66 pages of dense legal text. Millions of words and thousands of lawyer hours will be spent dissecting, analyzing and litigating this law in the coming years. This post is only a high-level introduction to the MMA – just enough that you can comment semi-intelligently if the topic comes up at a party during the holidays. I’ve put more detail into the footnotes, which you can read if you’re interested in going a bit deeper. And, I’ll delve more deeply into some of the issues raised by the MMA in subsequent posts.
With that warning …
Compulsory Licensing and the Mechanical Licensing Collective
The MMA creates a “blanket license” for digital music service providers to sell interactive music streams. It authorizes the creation of a quasi-governmental “Mechanical Licensing Collective” (the “Collective” or “MLC”) to administer this system. The Collective will create and maintain an online, publicly available “musical works database” of all the musical works (notes and lyrics), their owners and the percentage ownership of works co-written by multiple songwriters. The interactive digital streaming services will pay the Collective, and the Collective will pay songwriters.
The licensing system is “compulsory,” in the sense that composers are compelled by operation of law to enter into the licenses, there is no “opt-out,” and the license exists whether or not composers take any action to make sure they are properly registered with the Collective.
Who will create this massive database and how long it will take to populate it is yet to be determined.
The Collective is charged with developing and maintaining the database. However, in the end it will be up to composers to get accurate ownership information to the Collective – that’s the only way composers can be sure they’ll get paid.
Once the database is operational the MMA’s goal is for the database to contain ownership data for every musical work protected by U.S. copyright law. This includes musical works owned by non-U.S. songwriters as well as U.S. composers, if their works are streamed in the U.S. Therefore, songwriters outside the U.S. will have to make sure their works are properly registered with the Collective if they want to be paid.
Spotify Logo
The MMA allows digital streaming companies to pay the proper owners by paying the Collective. This allows interactive streaming companies (for example, Spotify, Apple Music, Amazon Music, Deezer, Tidal) to stop worrying about whether they are paying songwriter royalties to the proper rights holders, a major liability risk pre-MMA. Their obligations to songwriters under copyright law will be satisfied as long as they pay the Collective. It’s up to the Collective to then pay the songwriters. And it’s up to the songwriters to make sure their compositions are correctly registered with the Collective.
How much will songwriters be paid under this compulsory license? As was the case before the MMA, royalty rates will be set by the Copyright Royalty Board.
If it strikes you that this law is a mind-blowingly complex and ambitious undertaking, you are right! How long it will take for the Collective to select a developer and get the database established with correct ownership information is anyone’s guess. However, the target date for the cut-over to this system is January 1, 2021.
So, a few takeaways your holiday party –
- “Wow, can they really do this in two years? I’ll bet Congress will have to extend the effective date.”
- “Who will get the contract for this project – Microsoft or Oracle? Ha ha …”
- “How many songwriters will never hear about this, or won’t bother to register with the MLC? I mean, lots of musicians haven’t heard of SoundExchange even today, 17 years after it was created.”
- “The MMA prevents songwriters from recovering statutory damages infringements retroactively to January 1, 2018 – is that constitutional? I’ll bet that issue will be litigated.”
Pre-1972 Sound Recordings
People are often surprised to learn that U.S. copyright law did not cover public performances of pre-1972 sound recordings. When you hear Stairway to Heaven (1971) played on the radio or digitally streamed on an interactive service like Spotify, Jimmy Page and Robert Plant (the composers) receive a songwriter royalty. But no one else is paid royalties (the other band members or, more likely, the record company that owns the recording).
This will change under the MMA, but only for sales by digital streaming services and satellite radio stations, such as Sirius XM. So-called “terrestrial” radio stations (AM/FM radio) can still play pre-1972 sound recordings without paying a royalty to the rights-holders (although they must pay songwriter royalties, as they have in the past, typically through the PROs).
While this seems like a fair start to paying owners of pre-1972 sound recordings, one aspect of the law is particularly controversial – the duration of the new public performance copyright in the sound recordings. I’ll address this issue in a later post. (Hint: the duration is long).
Takeaways for your holiday party:
- “So, this is digital only? Why doesn’t AM/FM radio have to pay royalties also? That doesn’t seem fair.”
- “So, even though pre-1972 sound recordings have been in the public domain with respect to public performances for more than 45 years, they will now suddenly be protected by copyright law? Is it right for the law to suddenly protect sound recordings that have been in the public domain (for public performances) after such a long time?”
Payments to Producers
This part of the MMA creates a system for SoundExchange to pay royalties directly to producers based on a “letter of direction” SoundExchange receives from recording artists. For sound recordings fixed before November 1, 1995, even in the absence of a letter of direction SoundExchange will allocate 2% of royalties for a sound recording to be paid to producers involved in the making of that sound recording.
Takeaway for your holiday party:
- “Music producers contribute a lot to sound recordings. It’s about time the law recognizes this!”
Conclusion
Yes, this is a huge, complicated law, and I’ve barely scraped the surface. It’s going to take a long time for it to percolate fully throughout the music world. And, it’s going to be a challenge for the Copyright Office to implement it under the schedule set by Congress. Whether it turns out to be beneficial for music composers and the copyright system as a whole will not be known for years.
More to come.
Update: On July 5, 2019 the Copyright Office announced that the Mechanical Licensing Collective, Inc. (MLC) has been selected as the entity that would administer the blanket license and distribute collected royalties to songwriters and music publishers. As discussed above, this entity will be responsible for developing and maintaining a comprehensive database of musical works and sound recordings, which will be publicly available. The MLC is led by the National Music Publishers Association (NMPA), the Nashville Songwriters International Association and the Songwriters of North America (AMLC). Ed Christman goes into this decision in detail in his Billboard article, Why The U.S. Copyright Office Chose The Mechanical Licensing Collective.
Footnotes:
by Lee Gesmer | Nov 28, 2018 | General, Trademark
The U.S. Supreme Court decides very few intellectual property cases. And, it accepts review of few cases from the First Circuit Court of Appeals in Boston (my circuit). So, when the Supreme Court accepts an IP case appealing a decision from the First Circuit, as it has now, I pay attention.
The case under appeal involves a narrow but important legal issue that is of interest to both the intellectual property licensing and bankruptcy communities. Here is a brief summary of what’s at issue.
The decision on appeal is Mission Product Holdings Inc. v. Tempnology LLC (1st Cir. January 12, 2018), and the issue is a mashup of trademark and bankruptcy law.
When a company files for protection under Chapter 11 of the Bankruptcy Code, the trustee or the debtor-in-possession (the “debtor”) may secure court approval to “reject” any executory contracts to which the debtor is a party. An example would be a distribution agreement for a specific term (say five years) that has not run its course. If the distributor goes into bankruptcy two years into the five year term it can “reject” the contract – it is no longer obligated to perform during the remaining years.
The debtor doesn’t get off completely free – it is left with a liability for a pre-petition breach of the contract. 11 U.S.C. § 365(g) (“[T]he rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease … immediately before the date of the filing of the petition….”). However, the other party to the contract has nothing more than an unsecured claim, and these are often worth little in bankruptcy proceedings.
There is an important exception to this rule, which leads to the issue in this case. When the rejected contract is one “under which the debtor is a licensor of a right to intellectual property,” the licensee may elect to “retain its rights … to such intellectual property,” in effect forcing the continuation of the license. 11 U.S.C. § 365(n)(1).
However, the exception presents a potential problem for licensees in one respect – the definition of “intellectual property” includes patents, trade secrets and copyrights, but does not mention trademarks, a form of intellectual property that is often the subject of license agreements. 11 USC § 101(35)(A)
The First Circuit case involved an ongoing (“executory”) trademark license, and the debtor took the position that because trademarks are not included in the list of exceptions, it was entitled to reject (terminate) a trademark license. The licensee, the other party in the case, took the opposite position, asserting that the trademark license should continue.
The licensee lost before the bankruptcy court and appealed to the First Circuit. After a review of the statutory history of the law and the policy issues involved, the First Circuit held that Congress meant what it said by omitting trademarks from the list of the kinds of intellectual property that cannot be rejected by a Chapter 11 debtor – executory trademark licenses are an exception to the exception, and they can be rejected by a debtor. Therefore, the licensee lost its ongoing trademark license.
However, this ruling set up a “circuit conflict” with the Court of Appeals for the Seventh Circuit. For reasons too detailed to go into here, in Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC (7th Cir. 2012), the Seventh Circuit held that Chapter 11 bankruptcy does not entitle the debtor to terminate a trademark license.
This conflict between the First and Seventh Circuits led the Supreme Court to accept an appeal of this case. And, this is clearly a case worthy of Supreme Court review. Prospective licensees should know whether or not they will be able to continue to use a trademark if the licensor files for bankruptcy, not that it depends on where in the country the bankruptcy is filed and therefore which circuit’s law is controlling. A decision by the Court will resolve, nationwide, the status of trademark rights when a debtor rejects a license agreement in bankruptcy.
Briefing on this case has not yet begun, but the case is likely to be heard next year, and a decision issued before the Supreme Court 2018-19 term ends next June. I’ll update this post when a decision is issued. In the meantime, here is a link to the Scotusblog page for the case.
Update, May 2019: The Supreme Court ruled that a debtor may not terminate a trademark license. Link to decision.
FOOTNOTES
by Lee Gesmer | Oct 26, 2018 | DMCA/CDA
Section 230 of the Communications Decency Act has, once again, protected a website from a claim of defamation based on user postings.
Simply put, Section 230 of the CDA provides that a website isn’t liable for defamation (or any other non-intellectual property claim) based on user postings. The poster may be liable (if she can be identified), but the website is not. Typically, Section 230 cases involve defamation or interference with contract by the poster — copyright infringement based on user postings is handled by a separate statute, the DMCA.
Craft Beer Stellar, LLC’s suit against Glasdoor ran into this law head-first in a recent case decided by Massachusetts U.S. District Court Judge Dennis Saylor.
Craft Beer complained to Glassdoor over a critical posting by a Craft Beer franchisee (the fact that the post was by a franchisee rather than an employee is legally irrelevant). Glassdoor removed the posting on the ground that it violated Glassdoor’s community guidelines. The franchisee reposted, this time in compliance with the guidelines, and Glassdoor denied a request by Craft Beer to remove the second posting.
Craft Beer argued that by taking down the first review and allowing the second review to be posted Glassdoor lost its Section 230 immunity. The judge summarized its argument as follows:
Glassdoor essentially contends that Glassdoor’s decision to remove a “review” from its website for violating its community guidelines, combined with its subsequent decision to allow the updated, guidelines-compliant version of the “review” to be re-posted, constituted a material revision and change to the post’s content. Such a material revision, it contends, constituted an act of creating or developing the post’s content, and accordingly transformed Glassdoor from an (immunized) interactive computer service into an information-content provider not subject to the protections of §230.
Judge Saylor rejected this argument, noting that Glassdoor wrote neither of the two posts; it just made a decision to publish or withdraw the posts. First Circuit precedent holds that these kinds of “traditional editorial functions” — deciding whether to publisher or withdraw content — fall squarely within Section 230’s grant of immunity. See Jane Doe No. 1 v. Backpage.com LLC (1st Cir. March 14, 2016) (“lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred”).
Craft Beer also claimed that Glassdoor had violated the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836. However, as noted above, Section 230 provides protection for non-intellectual property claims. Although one would ordinarily think of a trade secret claim as an intellectual property claim (and therefore not covered by Section 230), the DTSA expressly states that the DTSA “shall not be construed to be a law pertaining to intellectual property for purposes of any other Act of Congress.” Accordingly, Section 230 provided Glassdoor with protection from the DTSA claim as well. (For an in-depth discussion of this issue see Professor Eric Goldman’s article, The Defend Trade Secrets Act Isn’t an ‘Intellectual Property’ Law.)
The larger problem for Craft Beer may be that not only did the judge dismiss its complaint, but the case probably has added publicity to the bad reviews Craft Beer sought to quash. Indeed, even if it had won the case and forced Glassdoor to take down the offending posts, potential franchisees researching the company online would find the posts quoted in court decisions in the case. As things now stand, Craft Beer is probably suffering to some extent from the Streisand Effect (for another example of Section 230 and the “Streisland Effect” see here). And, if it is considering an appeal to the First Circuit (a bad move, in my opinion), a decision from the First Circuit will only make matters worse.
Craft Beer Stellar, LLC v. Glassdoor, Inc. (D. Mass Oct. 17, 2018)
by Lee Gesmer | Oct 8, 2018 | Copyright
Update to this post: Copyright Office Backs Led Zeppelin In Ninth Circuit En Banc Appeal (link)
The U.S. copyright community will look back on 2018 as an important year for music copyright law. Appellate decisions in music copyright cases are rare. However, this year we’ve seen two important opinions from the Ninth Circuit. In March the Ninth Circuit upheld a jury verdict that found that Pharrell Williams and Robin Thicke’s 2012 recording of “Blurred Lines” infringes Marvin Gaye’s 1976 composition of “Got To Give It Up” (see my blog post, “Blurred Lines at the Ninth Circuit,” here).
Now, in October, the Ninth Circuit has issued an opinion in Randy Wolfe’s copyright case against Led Zeppelin. The jury in that case found that Led Zeppelin’s 1971 recording of Stairway to Heaven did not infringe Wolfe’s composition copyright in the 1968 song Taurus (recorded by Spirit). However, the appeals court found that the judge made several errors during the trial, requiring that the case be retried.
There is a small measure of irony in the fact that in both cases the Ninth Circuit’s decisions appear to run counter to the opinions of most knowledgeable musicians.
Based on my extensive (but admittedly unscientific) survey of commentary in the music community, most musicians felt that Blurred Lines did not infringe Give It Up – at most, Blurred Lines copied the unprotectable genre of Give It Up. However, the Ninth Circuit found that there was sufficient evidence to support the jury verdict and upheld the finding of infringement on appeal.
Randy Wolfe
The sentiment was the same in the Led Zeppelin case – most musicians I surveyed argued that the introduction to Stairway to Heaven did not infringe the introduction to Taurus. The jury agreed, finding no infringement, but this time the appeals court disagreed, and sent the case back for a retrial, setting the case up for a possible jury verdict in favor of Wolfe’s estate.
Admissibility of Pre-1972 Sound Recordings
The Led Zeppelin appeal involved a number of legal issues, as is true of most appeals. The Ninth Circuit reversed the jury verdict and remanded the case for retrial based on faulty jury instructions on issues of originality and copyright protection of the selection and arrangement of public domain elements of a musical composition.
However, for most legal observers the key legal issue was whether, since pre-1972 copyright law did not recognize a copyright in sound recordings (and then only prospectively), the copyright in Taurus was limited to the simplistic lead sheet deposited with the Copyright Office in 1967. The trial judge in the Led Zeppelin case ruled that the copyright was limited to the Copyright Office deposit, and therefore the jury never heard the sound recording of Taurus.
The Ninth Circuit was presented with this issue in the Blurred Lines case, but was able to resolve that appeal without deciding it.
The court was presented with the issue a second time in the Led Zeppelin appeal, and this time the court did take it on. After examining the statute and the legislative history, and reviewing the limited case precedents on the issue (none of which were squarely on point) the court concluded:
“For the benefit of the parties and the district court on remand, we also address whether the scope of copyright protection for an unpublished work under the 1909 Act is defined by the deposit copy. We hold that it is.”
The reference to an “unpublished” work is confusing, since the sound recording of Spirit’s song Taurus was published in 1968. However, before 1978 courts had held that a musical work was “published” only when sheet music was distributed to the public. Under copyright law, distribution of a sound recording of a musical work was not considered a “publication” of the musical work. The lead sheet for Taurus was unpublished, and the court’s many references to the “unpublished work” refer to the lead sheet deposited with the Copyright Office.
Since the Ninth Circuit’s opinion is the first and only federal appellate decision on this issue it directly impacts song writers in the same position as Randy Wolfe: composers who own pre-1972 works and who may be considering a copyright suit against the owners of compositions or sound recordings they believe to be infringing. As was the case in the Led Zeppelin trial, these composers will not be able to play the sound recordings of their compositions for the jury in order to prove copyright infringement. Their evidence at trial will be limited to the sheet music filed with the Copyright Office, although this may be played for the jury by a witness (as was done at the Led Zeppelin trial).
This presents a potentially significant obstacle to proving copyright infringement of pre-1972 works since lead sheets for popular music filed in that era were often incomplete. As Wolfe argued (and as Marvin Gaye argued in the Blurred Lines case), the sound recording is the best evidence of a composition, and may contain compositional elements that have been copied by the defendant but that were not included in the sheet music.
At Retrial Wolfe May Get The Sound Recording of Taurus into Evidence After All
Despite this ruling, if the case is retried Randy Wolfe may be able to play the sound recording of Taurus for the jury based on a technicality. At trial Jimmy Page denied access to Taurus, and he was cross-examined on this issue by Wolfe’s lawyer. This included requiring Page to listen to Taurus in open court. However, the trial judge viewed the sound recording of Taurus to be outside the scope of Wolfe’s copyright, so he excluded the jury from the courtroom when the sound recording of Taurus was played. The jury was then allowed to reenter the courtroom, and Page was cross-examined on what he had just heard.
This was awkward, to say the least, and the Ninth Circuit ruled that the jury should have been permitted to view Page’s demeanor while he was listening to Taurus. The Ninth Circuit held that on retrial the jurors should be instructed that the sound recording of Taurus is limited to the issue of access, and is not to be used to judge the similarities between Taurus and Stairway to Heaven.
Of course, juries are often unable to understand (or unwilling to follow) “limiting instructions” of this sort, so this is, in effect, a backdoor means by which the jury may be able to hear Taurus if Jimmy Page again denies access (a strategic issue Page and his lawyers will have to deal with on retrial of the case).
What’s at Stake in This Case?
Why is Wolfe’s estate pursuing this case so aggressively? Obviously, the case raises issues of reputation and artistic integrity, particularly for Robert Plant and Jimmy Page, who composed Stairway to Heaven.
Monetarily, if Wolfe’s estate were to win it would be entitled to damages based on a share of profits attributable to Stairway for the three years preceding final judgment, as well as a share of royalties until 2067, 70 years following Wolfe’s death.
In the Blurred Lines case Marvin Gaye’s future damages were decided by the judge, who ruled that Gaye’s estate was entitled to 50% of future songwriter and publication royalties. If Wolfe were to prevail following a retrial it would be up to the judge to decide on the future royalty split for Stairway to Heaven, and this could be less than 50%, given that Wolfe’s claim of infringement is limited to the first two minutes of Stairway (an eight minute song). However, Wolfe is likely to argue that the opening two minutes of the song is the most important and recognizable part of Stairway, and therefore Wolfe is entitled to at least 50% of future royalties. How the court would rule on this issue is anyone’s guess.
Given Stairway to Heaven’s iconic stature and seemingly perpetual popularity even a decision awarding Wolfe significantly less than 50% of royalties for the next 49 years could be enough to justify the effort and expense Wolfe’s estate has invested in the case, and Led Zeppelin’s obstinacy in defending it.
Skidmore v. Led Zeppelin (9th Cir. Sept. 28, 2018)
p.s. Bustle? Google the lyrics of Stairway to Heaven
Update: The case was reheard en banc, and the jury’s verdict in favor of Led Zeppelin was upheld. Link
Second update (Aug. 2020): Skidmore has filed a cert petition with the Supreme Court. Seems like a long shot, but you never know. Link via Evernote.
Third update: Skidmore’s cert petition was denied.
FOOTNOTES
