Not Enough Bull In Stairway to Heaven

October 7, 2020

I've been playing guitar for about 56 years. I had high hopes of becoming the fifth Beatle but they broke up before it could all come together as John, Paul, George, Ringo, and Bill. Part of the reason that I became a lawyer was because I had quickly figured out that my guitar virtuosity wasn't quite up to that of Jimi Hendrix, Eric Clapton, Jeff Beck, Jimmy Page, or Stevie Ray Vaughan (and a sad note today on the passing of Eddie Van Halen). Sensing that my music career had its limits, I opted to re-tool from a rock guitarist to a Wall Street lawyer. 

Movin' along here, in 2015, "Michael Skidmore, as Trustee for the Randy Craig Wolfe Trust" filed a Complaint in the United States District Court for the Central District of California against Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, Inc., Warner Music Group Corporation, Warner/Chappell Music Inc, Atlantic Recording Corporation, and Rhino Entertainment Company (herein, "Skidmore v. Led Zeppelin"). As Skidmore argued on behalf of  the deceased Wolfe, the opening notes of Stairway to Heaven were essentially stolen from the band Spirit's song Taurus, which Wolfe wrote. You may recognize among the names of the Defendants some of the roster of Led Zeppelin: Page, Plant, and Jones. As an aspiring guitarist, I was a fan of James Patrick Page a/k/a "Jimmy Page," who was a guitarist with the Yardbirds (which famously had a roster that included Eric Clapton then Jeff Beck and then Jimmy Page) and, most notably, he was with Led Zeppelin. 

I've listened to Spirit's "Taurus." I didn't need to listen to Led Zeppelin's "Stairway to Heaven" because it's carved into my soul. Taurus ain't Stairway to Heaven. Not even close. Sure, you can hear something in Taurus that sounds like a fragment of Page's famous guitar lead in Stairway to Heaven, but, hell, you can often hear faint traces of parts of so many songs in so many other songs. You got plagiarism and you got inspiration. Two different things. Thankfully, a federal jury concurred with my keen ear and dismissed the copyright infringement claim in Skidmore v. Led ZeppelinUnhappy with the jury's verdict, Skidmore appealed to the United States Court of Appeals for the Ninth Circuit ("9Cir"), which issued an Opinion affirming the District Court's findings.
Consider some of these greatest hits from the 73-page 9Cir Opinion in Skidmore v. Led Zeppelin [Ed: footnotes and images omitted]:

Stairway to Heaven has been called the greatest rock song of all time. Yet, hyperbole aside, nearly 40 years after the English rock band Led Zeppelin released its hit recording, the song is not impervious to copyright challenges. The estate of guitarist Randy Wolfe claims that Led Zeppelin and its guitarist Jimmy Page and vocalist Robert Plant copied portions of Taurus, a song written by Wolfe and performed by his band Spirit. 

This appeal stems from the jury's verdict in favor of Led Zeppelin and a finding that the two songs are not substantially similar. Like the jury, we don't need to decide whether Stairway to Heaven has a place in the annals of iconic rock songs. Instead, we address a litany of copyright issues, including the interplay between the 1909 and 1976 Copyright Acts, the inverse ratio rule, the scope of music copyright, and the standards for infringement, 

The 1909 Copyright Act, which does not protect sound recordings, controls our analysis. The copyright at issue is for the unpublished musical composition of Taurus, which was registered in 1967. The unpublished work is defined by the deposit copy, which in the case of Taurus consists of only one page of music. We also join the majority of circuits in rejecting the inverse ratio rule and overrule our precedent to the contrary. Finally, we are not persuaded by the challenges to jury instructions and various other evidentiary and trial rulings. We affirm the district court's entry of judgment in favor of Led Zeppelin and related parties.

Pages 7 - 8 of the 9Cir Opinion

Randy Wolfe, professionally known as Randy California, wrote the instrumental song Taurus in 1966 or 1967. He was a guitarist in the band Spirit. Spirit signed a recording contract in August 1967 and released its first eponymous album-which included Taurus-a few months later. Wolfe also entered into an Exclusive Songwriter's and Composer's Agreement with Hollenbeck Music Co. ("Hollenbeck"). In December 1967, Hollenbeck registered the copyright in the unpublished musical composition of Taurus, listing Wolfe as the author. As required for registration of an unpublished work under the 1909 Copyright Act, which was in effect at the time, Hollenbeck transcribed Taurus and deposited one page of sheet music (the "Taurus deposit copy"), with the United States Copyright Office. 

Around the same time, across the Atlantic, another rock band, Led Zeppelin, was formed by Jimmy Page, Robert Plant, John Paul Jones, and John Bonham. Led Zeppelin released its fourth album in late 1971. The untitled album, which became known as "Led Zeppelin IV," contained the now iconic song Stairway to Heaven. Stairway to Heaven was written by Jimmy Page and Robert Plant. 

It is undisputed that Spirit and Led Zeppelin crossed paths in the late 1960s and the early 1970s. The bands performed at the same venue at least three times between 1968 and 1970. Led Zeppelin also performed a cover of a Spirit song, Fresh Garbage. But there is no direct evidence that the two bands toured together, or that Led Zeppelin band members heard Spirit perform Taurus

Wolfe passed away in 1997. After his death, Wolfe's mother established the Randy Craig Wolfe Trust (the "Trust") and served as the trustee until she passed away. Neither Wolfe nor his mother filed a suit regarding Stairway to Heaven. Michael Skidmore became a co-trustee of the Trust in 2006. Fast forward forty-three years from the release of Stairway to Heaven to May 2014. Skidmore filed a suit alleging that Stairway to Heaven infringed the copyright in Taurus, naming as defendants Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, and the Warner Music Group Corporation as parent of Warner/Chappell Music, Inc. ("Warner/Chappell"), Atlantic Recording Corporation, and Rhino Entertainment Co. (collectively "Led Zeppelin"). One may wonder how a suit so long in the making could survive a laches defense. The Supreme Court answered this question in Petrella v. Metro-Goldwyn-Mayer, Inc., which clarified that laches is not a defense where copyright infringement is ongoing. 572 U.S. 663, 668 (2014).

Skidmore alleged direct, contributory, and vicarious copyright infringement. He also sought equitable relief for a claim that he titled "Right of Attribution-Equitable Relief-Falsification of Rock n' Roll History." Skidmore's claims are not based on the entire Taurus composition. Rather, Skidmore claims that the opening notes of Stairway to Heaven are substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy: 

. . .

The claimed portion includes five descending notes of a chromatic musical scale. These notes are represented on the piano as a set of adjacent black and white keys, from right to left. The beginning of Stairway to Heaven also incorporates a descending chromatic minor chord progression in A minor. However, the composition of Stairway to Heaven has a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios, which are not present in Taurus.

Pages 8 - 10 of the 9Cir Opinion

The district court correctly concluded that under the 1909 Act, which controls the copyright registration in this case, the Taurus deposit copy circumscribes the scope of the copyright. Because the deposit copy defines the four corners of the Taurus copyright, it was not error for the district court to decline Skidmore's request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantial similarity.

Page 22 of the 9Cir Opinion

At trial, one of Skidmore's key arguments was that Led Zeppelin members heard either performances or recordings of Taurus before creating Stairway to Heaven, and thus had access for purposes of copying the music. To prove that point, Skidmore wanted to play several recordings of Taurus during the testimony of Jimmy Page, claiming that observing Page listening to the recordings would have enabled the jury to evaluate his demeanor with respect to access. Skidmore's counsel explained that the recordings could be offered to prove access, even if the court excluded them for proving substantial similarity. The district court determined that although the sound recordings were relevant to prove access, Skidmore's approach would be "too prejudicial for the jury" because it risked confusing access with substantial similarity. Hence the court excluded the recordings under Federal Rule of Evidence 403. The court instead permitted Skidmore's counsel to play the recordings for Page outside the presence of the jury and then question him about the recordings in front of the jury.
Page 24 of the 9Cir Opinion

The Coda: Supreme Court Denies Cert
And as we wind on down the road; Our shadows taller than our soul

The motion of The Pullman Group, LLC, et al. for leave to file a brief as amici curiae is granted. The motion of California Society of Entertainment Lawyers for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.

at Page 46 of the Supreme Court's Order List for October 5, 2020 

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