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.1 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).2 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.
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. 3
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.4
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.5
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, June 10, 2019] – Ninth Circuit has granted reheading en banc (link); the opinion discussed here is a nullity.
- Randy Wolfe (aka Randy California) died in a drowning accident in 1997, and his estate is represented by a trustee named Michael Skidmore, the named plaintiff in the case. For ease of reference I’ll refer to the plaintiff as Randy Wolfe.
- If you are wondering how, given the 3 year statute of limitations for copyright infringement, someone could file a copyright case more than 4 decades after Led Zeppelin published Stairway to Heaven, the answer lies in the Supreme Court’s 2014 decision in Petrella v. Metro-Goldwyn-Mayer, Inc., which held that laches (delay in filing suit) is not a defense to ongoing copyright infringement. That decision led directly to this lawsuit.
- Musical works are protected by two independent copyrights: a copyright in the composition and a copyright in the sound recording. These copyrights may be owned by the same person, but often they are not. For example, Jimi Hendrix’s estate owns the copyright in the sound recording of “All Along the Watchtower,” but Bob Dylan owns the copyright in the composition to that song. Hendrix pays Dylan composer royalties when his sound recording of Watchtower is sold, downloaded or broadcast.
- For example, Wolfe argued that the sound recordings of Taurus and Stairway to Heaven had similar sonic landscapes and production techniques.
- Wolfe might refer the court to the decision of a U.K. court awarding Matthew Fisher of Procol Harum 40% of royalties for his contribution to A Whiter Shade of Pale, although Fisher’s contribution was limited to the organ introduction.