9th Circuit Affirms Led Zeppelin Trial Verdict That "Stairway To Heaven" Is Not An Infringement

Skidmore as Trustee for Randy Craig Wolfe Trust v. Zeppelin, No. 16-56067, No. 16-56287, 2020 WL 1128808 (9th Cir. Mar. 9, 2020) (en banc)

In an en banc decision, the 9th Circuit affirmed the Central District of California’s post-jury trial judgment in favor of Led Zeppelin in a suit alleging that Led Zeppelin’s song “Stairway to Heaven” infringed the song “Taurus” written by guitarist Randy Wolfe of the band Spirit.

In Part I of the en banc decision, the court held that the 1909 Copyright Act controlled the court’s analysis because the allegedly infringed song “Taurus” was registered prior to the 1976 Copyright Act’s enactment. As a result, it was not error for the lower court to refuse to admit the sound recordings of “Taurus” to evidence.

In Part II, the court held that proving copyright infringement here required a showing that (1) the plaintiff owned a valid copyright for “Taurus,” and (2) Led Zeppelin copied protected elements of “Taurus,” which further required a showing of both copying and unlawful appropriation by Led Zeppelin.

In Part III, the court concluded that as it pertained to access and confusion with substantial similarity, the lower court’s exclusion of the “Taurus” sound recordings was moot because the jury found access regardless.

Next, in Part IV the court addressed the following issues regarding the district court’s jury instructions: (1) “the failure to give an inverse ratio instruction”; (2) “the sufficiency of the court’s originality instructions”; and (3) “the failure to give a selection and arrangement instruction.” In addressing these issues, the court held that (1) an inverse ratio was not required for substantial similarity; (2) the district court’s originality instructions were proper; and (3) failure to give selection and arrangement instruction receives plain error review, there was no plain error by the district court, there was no error by the district court because the plaintiff’s case did not involve a selection and arrangement theory at trial, and the district court’s instructions as a whole were fair and adequate as to plaintiff’s argument of extrinsic similarity between the songs.

Finally, in Part V the court held that the district court’s trial time limits, response to a jury question, admission of expert testimony, and non-award of attorneys’ fees was not error.

K. Perry Granted Judgment as a Matter of Law in “Dark Horse” Copyright Infringement Suit

Gray; et al. v. Perry; et al., No. 2:15-cv-05642-CAS-JCx, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020)

The U.S. District Court for the Central District of California granted a renewed motion for judgment as a matter of law filed by Katy Perry, Juicy J, and others involved in producing Perry’s song “Dark Horse” (“Defendants”) after a jury returned a verdict in favor of Plaintiffs in August 2019. The trial focused on Plaintiffs’ claims that Perry’s song “Dark Horse” infringed an 8-note ostinato in their song “Joyful Noise.” Applying the 9th Circuit’s “extrinsic test,” the court held that it could not conclude as a matter of law that the “allegedly original individual elements” of the ostinato in question were independently protectable. Additionally, the court held that the 8-note ostinato from “Joyful Noise” is not a sufficiently original combination of those individually unprotectable elements and thus the Plaintiffs failed to satisfy the “extrinsic test.” Furthermore, the court determined that even if the ostinato combination were protectable, under the Led Zeppelin case recently decided by the 9th Circuit, to find infringement the allegedly infringing ostinato in “Dark Horse” and the 8-note ostinato from “Joyful Noise” would have to be “virtually identical,” which the court found they were not. As a result, the court concluded that the Defendants were entitled to judgment as a matter of law on the copyright infringement claim.

Led Zep Publishers Denied Attorney's Fees After "Stairway" Trial

Skidmore v. Led Zeppelin et al., No. CV 15-03462 RGK (AGRx) (C.D. Cal. Aug. 8, 2016).

After winning the Led Zeppelin "Stairway To Heaven" trial, the Judge denied the defendant music publishers' motion for approx. $800,000 in attorney's fees and costs under section 505 of the Copyright Act.

Once the media hype and tangential distractions are stripped away, what remains is an objectively reasonable claim motivated by a desire to recognize Randy California’s musical contribution. The claim survived a summary judgment motion and proceeded to a hard-fought trial where a jury found for Plaintiff on ownership and access, but ultimately rendered a verdict for Defendants based on a lack of substantial similarity. Plaintiff was afforded a full opportunity to litigate its theory of infringement and Defendants were entitled to raise a meritorious defense, which ultimately prevailed. Viewing “all the circumstances of [this] case on their own terms, in light of the Copyright Act’s essential goals,” this Court concludes that attorney’s fees are not appropriate. Kirtsaeng, 136 S. Ct. at 1989.

Stairway To Heaven Not Copyright Infringement Finds Federal Jury

Skidmore v. Led Zeppelin, No. 15-cv-3462 (C.D. Cal. June 23, 2016).

After about one day of deliberating, a federal jury in California returned a verdict in favor of Led Zeppelin finding that their iconic song "Stairway To Heaven" did not infringe the song "Taurus" by 1960's band Spirit.  News outlets report that the jury found that while Led Zeppelin had a reasonable chance of having heard "Taurus" in order to copy it, the songs were not extrinsically similar.

Stairway To Heaven Copyright Infringement Survives Dismissal, Transferred From Philly To Calif.

Skidmore v. Led Zeppelin,  14-cv-03089 (E.D. Pa. filed 05/06/15) [Doc. 54].

Plaintiff alleged Led Zeppelin copied significant portions of its iconic 1971 song “Stairway to Heaven” from plaintiff's copyrighted guitar composition “Taurus,” and that all of the Defendants (the band members, publisher and label) have exploited and continue to exploit “Taurus” as “Stairway to Heaven.”  Plaintiff sued all Defendants for direct, contributory, and vicarious copyright infringement and also brought a claim for equitable relief in the form of an order directing Defendants and the Copyright Office to include Plaintiff as a writer of “Stairway to Heaven."  Defendants moved to dismiss for lack of jurisdiction and improper venue.

The Court found the individual Defendants (band members) were not subject to either general or specific jurisdiction in Pennsylvania, where the case was filed.  Notably, because there is a three-year statute of limitations for copyright claims, the Court found that contacts with Pennsylvania in the 1980s and 1990s were not relevant to the Court's analysis.  These Defendants, however, consented to personal jurisdiction and venue in the Central District of California.  The Court found a transfer to California to be in the interests of justice.

Zeppelin Named as Plaintiffs in ASCAP Suits

We've covered the public performance cases filed by ASCAP and BMI, and usually the named plaintiffs are (i) major publishers, like EMI and SonyATV, and (ii) the artists' boutique-publishing LLC. So, it was with great surprise that OTCS discovered this public performance case with the members of Led Zeppelin as individual named plaintiffs.

Don't get excited. The complaint is as vanilla as the rest. But, it is interesting to observe that Led Zeppelin appears to handle their publishing personally, at least on some level.

The Caption -- No. 1:08-cv-00604-WDM (D.Colorado filed Mar. 24, 2008)

ODNIL MUSIC LIMITED, FIFTY-SIX HOPE ROAD MUSIC LIMITED, JAMES PAGE (JIMMY PAGE), ROBERT PLANT, JOHN BALDWIN (JOHN PAUL JONES) and PATRICIA BONHAM, individually and as Guardian of the children of deceased author JOHN BONHAM, JASON BONHAM and ZOE BONHAM

Plaintiffs,

v.

FRANKIE’S TOO, INC, and
FRANKIE D. PATTON

Over The Hills and Far Away

OTCS was one of (literally) millions of entrants to see Led Zeppelin LIVE and REUNITED for tonight's show in London. But, as luck would have it, OTCS didn't get drawn for the lottery...

Any readers at the show, please post comments about the performance.

Also, because this is a tribute concert, OTCS wonders whether there will be a later-released DVD or album (like G. Harrison's Concert for Bangladesh.) If yes, does Led Zeppelin have any sort of back-side deal on this compilation? A percentage of the DVD sales? Will they be so vein as to edit their performance, or outright ban it from the release (a la 1985 Live Aid?).

Ramble On...

Robert Plant asserts that the upcoming Led Zeppelin performance (Ahmet Ertugen Tribute Nov. 26 in London) will NOT be the launching ground of a Led Zeppelin tour.

I suppose when you make enough money on album sales (exclusively in the physical realm, no less!), public performance on the radio (what city doesn't have a Led Zeppelin/Pink Floyd channel? WNCX baby!), & merchandise etc....AND you haven't recorded new material as a band since at least 1982's "Coda"... you can turn away a gold-mine...?!