Led Zeppelin vs Spirit/Skidmore v.1: discarded.
It’s been about a year since a jury decided that Led Zeppelin’s Stairway To Heaven did not infringe upon the copyright of Taurus, by the band Spirit. That jury ruled that although Led Zeppelin had access to Taurus (meaning Zeppelin had probably heard it) the two songs were not substantially similar under the extrinsic test.
The plaintiff’s appealed arguing that the district court: (1) failed to instruct the jury that the selection and arrangement of otherwise unprotectable individual musical elements might be protectable by copyright; (2) improperly instructed about originality; and (3) didn’t give them an “inverse ratio” instruction.
And the Ninth Circuit pretty much agrees, and has vacated the district court jury’s decision and remanded for a new trial.
Well, whether you’re a lawyer, musician, or just rock and roll fan, so this first of all: While the appellate judgment upheld the ruling that the scope of the copyright in Taurus is limited to its deposit copy sheet music (and not its recording), it says the jury should have heard the recording of Taurus when Jimmy Page did, as part of the access argument. And correcting this supposed error is going to be a very big deal in the new trial.
“Wait,” you say, “they didn’t hear Taurus the first time?”
No. The first jury wasn’t allowed to hear the recording of Taurus, and it’s hard to overstate the importance of this. Taurus begins with a very (very!) Stairway-like guitar introduction. It would be much the whole point here.
This came up in the Blurred Lines trial too. The Copyright Act of 1909 says the protectable copyright is in the “deposit copy” — the thing you actually send to the U.S. Copyright Office. Nowadays the deposit copy is very often an mp3 recording, but it could also be sheet music, cassette (don’t giggle), vinyl; whatever serves best as the thing you want protected, you send that. Back in the early seventies, you sent sheet music, and the notes on the page are pretty much the extent of what’s protected. Most entertainingly in this case it so happens that neither Stairway’s nor Taurus’s guitar intros are in their respective sheet music deposit copies and therefore the recordings of those intros were disallowed. And since Taurus after its intro sounds and probably appears on sheet music not much at all like Stairway, this leaves a lot less for the plaintiffs to work with.
None of that changed really. It’s upheld that the deposit copy is the thing we’re comparing, but even though the 1909 act is still in effect, the jury may hear Taurus this time anyway. And it’s interesting going forward — a way to get your disallowed recording heard after all, just for a different purpose.
The Access Argument
Recall that copyright infringement is a bit of a three legged stool.
- You need protectable stuff to begin with.
- It has to be substantially similar to another’s stuff, created after your stuff.
- The infringer needs to have somehow had access to the prior bit of stuff before infringing upon it.
Nobody imagines Page had access to the sheet music. The plaintiffs need to argue he’d heard the recording. It was decided in the first trial that since the jury was not to hear the recording, Page would need to go through the dance of heading off to another room, away from the jury, listen to Taurus, and return to be questioned about whether he’d heard Taurus before writing Stairway.
The Ninth believes that the jury should’ve been allowed to observe Page as he listened and I suppose check for physical signs of his recognition or perhaps guilty feelings? I can see that. But the remedy? They’re going to play that Taurus guitar intro and instruct the jury to not consider it when they decide on similarity? That I’d say is probably way far fetched.
The other misdirections.
Let’s get back now to the part where the plaintiffs were harmed because the jury wasn’t informed properly. First that selection and arrangement of otherwise unprotectable individual musical elements could itself be protectable. I can barely imagine what this even means in this context. Taurus isn’t a sound collage. All music is on some level an arrangement of unprotectable musical elements. A single note is an unprotectable musical element. A couple of them or a short series is possibly protectable, but it’s not very likely. It’s a bit pedantic to point out that a series or arrangement of unprotectable notes or groups of notes might be protectable. It’s possible, sure. But the precedents cited in the Ninth’s opinion are about computers and jellyfish sculptures. Putting sculpture aside a second, a computer is an assembly of parts that might enjoy their own respective patents or not, and the assembly, sure, might be protectable IP. But it’s not that you get to string together a bunch of unprotectable stuff and that makes the stuff protectable; rather it’s your arrangement that becomes protectable. MAYBE! And that’s as far as it goes. Here if we’re probably talking about a series of notes in a bass line and the progression is the thing that’s well worn, then the progression is the arrangement, and well worn it remains. To be fair according to the Ninth’s opinion, “(The plaintiff’s) expert, Dr. (Alexander) Stewart, testified that there was extrinsic substantial similarity based on the combination of five elements—some of which were protectable and some of which were in the public domain.” I would love for Dr. Stewart to read this and tell me what these five were.
The jury was also misinformed as to “originality” in that they were told that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protectable. And I would agree that this is overly broad, technically inaccurate, and particularly since I suspect a five note chromatic scale was the heart of the plaintiff’s argument, prejudicial.
The opinion continues on the misinstructions around originality, “Additionally, Jury Instruction No. 20 stated that “any elements from prior works or the public domain are not considered original parts and not protectable by copyright.” While this statement is not literally incorrect, it misleadingly suggests that public domain elements such as basic musical structures are not copyrightable even when they are arranged or modified in a creative, original way.” And here I disagree. I would argue that it doesn’t suggest the “selection and arrangement” thing, because that thing is, well, weird, and not to be assumed.
Okay, “weird” might not be the most useful argument. But someone’s gonna need to show me this “five elements some of which are public domain (that’s somewhere from one to four of em I guess?) and some not” argument, before I’ll start accepting that any jury instructions that don’t bend over backward paving a path in that direction are prejudicial.
Ninth also notes that the “inverse ratio rule” was not spelled out, and want it at least considered next time. This is the concept that the more access you had, the less you need to have jacked to be a crook. (Whether you are a good and thorough crook achieving “unlawful appropriation,” is a separate matter.) But they don’t think the plaintiff was harmed by its omission.
Hate to be the bustle in your hedgerow but…
I wrote a bit about my opinion that Stairway doesn’t infringe upon Taurus, predicted that Zeppelin would prevail, did a victory lap when they in fact did. Now I may have to reconsider for next time. Nah. The jury got it right; Stairway doesn’t infringe upon Taurus even though they sound a lot alike. But along the way, an imperfect system may have led them to that correct verdict for some not so great reasons.
Worse, this new trial we can argue is as flawed from the outset as was the first. Since the jury never heard Taurus’s nor Stairway To Heaven’s introductions, the first one wasn’t the trial it was meant to have been at all. This next one isn’t shaping up to be much better.