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.

Michael Jackson’s Production Company to pay $9.4M in Royalty Damages to Quincy Jones

Jones  v. MJJ Productions Inc. et al., No. BC525803 (Superior Court of the State of Cal. For the Cty. Of L.A.)

Michael Jackson’s production company was ordered to pay producer Quincy Jones more than $9.4 million in royalty damages for his work on “Thriller,” “Bad,” and “Off the Wall.” The jury determined that Jones was shorted after Jackson’s estate had breached contracts but declined to award Jones the full $30 million sought

Judge Overturns ‘Jersey Boys’ Verdict; Jury Came to Wrong Conclusion

Corbello v. DeVito et al., No. 2:08-cv-00867 (D. Nev. June 13, 2017)

U.S. District Judge Robert Jones overturned a verdict that the creators of “Jersey Boys,” had improperly used material from an unpublished autobiography of Tommy DeVitto. In November, the jury found for Donna Corbello, widow of Rex Woodard who was the ghostwriter of DeVitto’s autobiography. After the jury found that the show’s writers infringed on the copyrighted material, the defendants filed a motion for a new trail. Judge Jones determined the show’s content constituted fair use of the book. He stated that the jury could have found 145 creative words to have been copied from the book into the show. He determined those 145 words to constitute about 0.2 percent of the 68,500 words in the book. Back in November, the jury concluded that 10 percent of the play’s success was credited to the book, which Judge Jones called “unsupportable.” While comparing the book to the play was a difficult job, the jury also had to deal with 40 pages of instructions, which may have caused them to come to an improper conclusion.

"Jersey Boys" Infringes Copyright In Unpublished Autobiography, Finds Jury

Corbello v. DeVito, No. 08-867 (D. Nev. Nov. 28, 2016) [Doc. 1084].

The jury returned a verdict for the plaintiff in the "Jersey Boys" infringement action, finding that plaintiff did not grant an implied license to use the unpublished autobiography of Tommy DeVito (a member of the Four Seasons), that the play infringes the unpublished autobiography, that there was no fair use, that 10% of the success of the play is attributable to the unpublished autobiography, and that ten defendants were liable for direct infringement.  The docket reflects that the Court set a briefing schedule for post-trial motions, and directed the defendants to place monies in escrow.

Judge Dismisses Jersey Boys Suit Against Frankie Valli After Trial

Corbello v. DeVito, 08-cv-867 (D. Nev. Nov. 17, 2016).

The widow of a ghostwriter who had been engaged by a member of the Four Seasons to write an autobiography (the work), lost her copyright infringement case against Frankie Valli alleging that he and the other members of the band wrongfully misappropriated the work in making the hit musical "Jersey Boys."  The evidence at trial was un-rebutted that neither Valli nor band-mate Bob Gaudio ever saw the work until their depositions.  The Court further found that all claims for willful infringement failed as a matter of law.

Jury Finds No Likelihood Of Confusion In "Boston" Band Name Trial

Scholz v. Goudreau, No. 13-10951 (D. Mass. Nov. 1, 2016).

The plaintiff, a founder of the rock group "Boston," did not prove a likelihood of confusion between his current band and the band of the defendant, a former member of "Boston," finds a Massachusetts federal jury after relatively brief deliberations on plaintiff's trademark infringement claims.

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.

Attorney's Fees Awarded To Village People Member

Scorpio Music v. Willis, No. 11-cv-1557 (S.D. Cal. filed 9/15/15) [Doc. 280].

In a dispute over the percentage of copyright ownership over the Village People's hit songs (including "YMCA") that went to a jury trial, the Court held that an original member of the group and author (invidivually and jointly) of various songs was entitled to attorney's fees as the prevailing party.  17 USC 505.  The court found that Mr. Willis was the prevailing party and that he achieved a high degree of success: he defeated Plaintiff's claim that he could not unilaterally terminate his grants of copyright under 17 USC 203, prevailed on a number of summary judgment motions brought on the grounds of statute of limitations and laches, and prevailed on 13 of the 24 compositions at trial (including YMCA, the most lucrative).  Specifically, the Court found that granting fees would advance the purposes of the Copyright Act inasmcuh as Mr. Willis was "trying to get back what he transferred to Plaintiffs, parties with superior bargaining power, decades ago.  An award of attorney's fees is justified to encourage authors like Willis to assert their rights to regain their copyright interests and to deter production companies and other transferees of copyright from attempting to interfere with those rights."  Willis sought an award of approximately $527,000, and the Court did not find that an upward or downward adjustment was warranted.  Costs of approximately $3,000 were also taxed.

No New Trial In "Blurred Lines" Case; Damages Reduced; 50% Royalty Awarded

Williams v. Bridgeport Music, No. CV13-06004 (C.D. Cal. dated July 14, 2015).

In the "Blurred Lines" copyright infringement case, Robin Thicke's motion for a new trial was denied but the amount of damages he is laible for was reduced.  Additionally, the heirs of Marvin Gaye were awarded a declaratory judgment that any past and ongoing exploitation of "Blurred Lines" constitutes copyright infringement of "Got To Give It Up."  Rather than enjoin future exploitation or impound infringing articles, the Court awarded the Gaye parties a 50% royalty of songwriting/publishing revenues from "Blurred Lines."

Newly Discovered Evidence Stays Liability Finding In Shakira Suit

Mayimba Music, Inc. v. Sony Corp. of Am., No. 12-cv-01094 (S.D.N.Y. filed 04/30/15) [Doc. 139].

Finding that newly discovered evidence concerning the authenticity and date of creation of an audio tape, which implicated a potential fraud on the court during the liability phase of trial, resulted in the Court staying a previous finding of liability pursuant to Rules 59 and 60.  The Court had previously found plaintiff had a valid copyright in the song at issue, that the plaintiff's testimony was credible that he had authored the song between 1996 and 1998, that it was an original song, that the song was recorded onto a cassette tape in 1998, and that a copy of the song on the tape was registered at the Copyright Office in November 2011.  After trial, the parties engaged in extensive discovery of damages in preparation  for the second phase of trial.  Four months after the liability opinion was issued, Defendants filed a motion contending that newly-discovered evidence demonstrated that the tape was fabricated in 2011, not created in 1998, and that plaintiff had lied under oath when he testified that the tape had been created in 1998.  Thus, the core issues before the Court were "when the tape was created, and whether witnesses lied on the stand with respect to its creation".  The Court found that "this is newly discovered evidence which could not have been found with reasonable diligence before trial. ... Furthermore, the evidence now put forth, if credited, clearly establishes that Plaintiff attempted to commit a fraud upon this court, going so far as to fabricate evidence and to commit perjury."  Accordingly, the Court suspended the finding of liability against Defendants "until further clarification can be found on these very serious issues."

Pre-Trial Evidentiary Rulings In Grooveshark Case

UMG Recordings, Inc. v. Escape Media Group, No.11-cv-8407 (SDNY filed 04/23/15) [Doc. 174].

In advance of a jury trial on statutory damages, the Court made a number of pre-trial evidentiary determinations on motions in limine.  Among its holdings as to what the parties could or could not introduce at trial, the Court held that defendants were precluded from offering argument or evidence contesting that their conduct was willful or in bad faith (the jury would be instructed that there was a cap of $150,000 per work, not $30,000), but defendants were permitted to present proof as to the degree and extent of their willfulness.  As to Defendants' argument that Plaintiffs could receive statutory damages for infringement of pre-1972 sound recordings (or that the Court had jurisdiction over such claims), the Court reserved decision.  The Court also made several rulings as to what evidence Defendants could introduce concerning their failure to mitigate damages defense (e..g, concerning settlement and future licensing negotiations, failure to make claims against other infringers, DMCA compliance

"Whomp! (There It Is)" $2 Million Jury Award Affirmed

In re: Isbell Records, Inc. (Isbell v. DM Records), No. 13-40878 (5th Cir. Dec. 18, 2014).

The Fifth Circuit affirmed a finding that plaintiff owned the copyright in the composition of the song "Whomp! (There It Is)", that defendant was liable for infringement based on its exploitation of the song for year, and the jury's award of over $2 million in damages.  The primary issue was whether a 50% interest in the song had originally been assigned to the plaintiff or the defendant's predecessor-in-interest (the other 50% remained with the writers/producers of the song).  The 5th Circuit held that California contract interpretation law applied, and that the lower court correctly found that the contract granted the 50% interest in the song to the plaintiff.

On appeal of defendant's trial motion under Fed. R. Civ. P. 50 for judgment as a matter of law, the defendant raised two issues regarding the district court's interpretation of the recording agreement as assigning a single 50% interest to plaintiff.  First, the Court rejected defendant's argument that the lower court erred in interpreting the agreement without asking the jury to make any findings on extrinsic evidence.  Second, the Court rejected defendant's argument that the agreement also assigned a second 50% interest in the composition copyright because the argument had not previously pursued that theory and had disclaimed the theory at an earlier hearing.  In short, the defendant could not raise its "two assignments theory" after not previously asserting it at trial or in its earlier Rule 50 motion.

On appeal of defendant's motion under Fed. R. Civ. P. 60(b) for relief from judgment based on fraud and lack of standing, the Court rejected defendant's argument that it was prevented from presenting the defense of plaintiff's lack of standing.  Even if the plaintiff had improperly withheld a certain document, it would not have affected plaintiff's standing and thus would not have affected defendant's defense.

With respect to the jury's damage award of over $2 million, the Court rejected defendant's argument that plaintiff should have only been awarded 1/2 of that amount as 50% owner of the copyright.  First, defendant did not object to the jury charge during trial.  And under the plain-error standard of review, the district court did not err.  Notably, the 5th Circuit found that Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 268 (2d Cir. 1944), was inapplicable to the issue of first impression whether a partial owner of a copyright can ever be awarded infringement damages for his co-owner's share.  Specifically, the jury could have found that plaintiff was entitled to 100% of the royalties in the first instance as administrator/publisher of the song.  In other words, because plaintiff was obligated to account to the other 50% owners (the producers/writers), plaintiff could recover 100% damages and any issue as to distributions would be a separate case between the co-owners not involving the defendant.

Lastly, in affirming denial of defendant's Fed. R. Civ. P. 59 motion for a new trial, the Court found that plaintiff's closing statement -- referring to defendant as a "thief -- was not abusive and improper.  Defendant did not object to the closing statement at trial and thus the standard of review was plain error.  Evidence was presented at trial form which the jury could find that defendant's conduct was willful and that defendant stole the copyrights from plaintiff.  Further, any prejudice was minimized by the judge's instructions and the statements concerned damages rather than liability.  Further, plaintiff ultimateley elected actual damages which were higher than statutory damages, and willfulness is not an element of actual damages calculation.

Tejano Music Infringement Claim Fails Because No Access And Not Enough Similarity

Guzman v. Hacienda Records & Recording Studio, Inc., No. 6:12-CV-42, 2014 BL 344493 (S.D. Tex. Dec. 09, 2014).

After a bench trial, the Court dismissed plaintiff's copyright infringement claim because the alleged infringers did not have access to plaintiff's work nor were the two works strikingly similar.  This case is about two Tejano songs -- a hugely popular style of music in Corpus Christi from the 1970s through the 1990s, that is a a fusion of the Mexican and German influences in Texas. Although the Court found that substantial similarity existed between the songs, the Court declined to find the much higher standard of striking similarity, which is necessary for a finding of factual copying without any proof of access.  The Court also found that the evidence did not support a finding that defendants had access to plaintiff's song. The Court concluded that it was purely speculative that anyone associated with defendant heard plaintiff's song on the radio on the occasions when it was actually played, or ever heard it performed live.  "Because [plaintiff] has not shown a reasonable possibility that Defendants had access to his song, he cannot show that they copied it and his copyright infringement claim fails".

Motion For Judgment As Matter Of Law, Or For New Trial, Denied In Beastie Boys/Monster Case

Beastie Boys v. Monster Energy, 1:12-cv-06065-PAE (SDNY filed 12/04/14) [Doc. 181].

After a jury awarded plaintiff Beastie Boys a verdict on their copyright and trademark claims, defendant Monster moved for a judgment as a matter of law under Federal Rule of Civil Procedure 50.  As to the Copyright Act claim, Monster argued that the evidence was insufficient to support the finding of willful infringement on which the award of enhanced statutory damages was based.  As to the Lanham Act claim, Monster argued that the evidence was insufficient to support either a finding of a false endorsement or that
Monster acted with intentional deception.  Monster alternatively moved for a new trial under
Rule 59 or for a reduction in damages.   The court denied Monster’s motions.

No Interlocutory Appeal Of Pre-72 Sound Recording Liability Holding In Turtles v Sirius Case

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5693 (C.D. Cal. Nov. 20, 2014).

The District Court denied Sirius XM's motion to certify for interlocutory appeal the Court's earlier order granting partial summary judgment.  The earlier order granted plaintiff summary judgment to the extent that its claims were premised on Sirius XM's public performance of plaintiff's pre-1972 sound recordings, ruling that owners of sound recordings have the exclusive right to publicly perform their recordings under California Civil Code 980(a)(2).  28 USC 1292(b) provides a means for litigants to bring an immediate appeal of a non-final order with the consent of both the federal district court and the federal court of appeals.  The district court denied the motion because, "[a]t this stage in the litigation and under the operative scheduling order governing the case, certification of the Order for immediate appeal would delay rather than materially advance the termination of the litigation".  Continuing, the district court observed that the case is moving swiftly toward trial and a final resolution that will be appealable to the Ninth Circuit in the customary manner.  While interpretation of Cal. Civ. Code 980(a)(2) is an issue of controlling law, an immediate appeal would not speed up the resolution of the case.

Punitive Damages Verdict Significantly Reduced; Defendant Granted Judgment Notwithstanding Verdict On Cover Art And DMCA "Red Flag" Theories

Capitol Records, Inc. v. MP3Tunes, No. 07-cv-9931 (S.D.N.Y. filed Sep. 29, 2014) [Doc. 629].

Defendant moved for judgment as a matter of law, or alternatively a new trial, and for remittur following a $48,061,073 jury verdict in favor of plaintiffs, who consisted of record labels and publishers who had filed copyright and unfair competition claims alleging that defendant and MP3Tunes made infringing copies of copyright songs and cover art.  The motion was denied in part, and granted in part.  Specifically, defendant's motion for judgment as a matter of law was granted as to plaintiffs' claims of (1) public display rights in cover art, and (2) copyright infringement under "red flag" knowledge and willful blindness theories (except for certain works sideloaded and which the source domain's URL was obviously infringing and viewed by a company executive).  Further, defendant's motion for a new trial on punitive damages was granted unless plaintiffs elected to remit the jury's punitive damage award to $750,000.

Judge Finds Liability In Shakira Infringement Trial

Mayimba Music, Inc. v. Sony Corp. of Am. et al., No. 1:12-cv-01094-AKH (SDNY filed 08/19/14) [Doc. 104].

This is an infringement action alleging that a Shakira song infringes the copyright in a musical composition.  After a bench trial, the Court found: (a) that plaintiff, as exclusive licensee, had standing; (b) there was no proof of laches; (c) the Shakira song was an unlawful copy of plaintiff's song; and (d) the US distributors were liable for infringement.  The next stage was determining damages, or alternatively a permanent infringement.

9th Cir. Orders Trial Over Bob Marley Licensing Rights

Rock River Commc'n v. Universal Music Group, No. 11-57168 (9th Cir. filed 9/18/13) [Decision]

This case concerns licensing rights for early Bob Marley recordings.  The absence of legal documentation has led to confusion as to who owns licensing rights for the recordings.

The 9th Circuit found that the chain of title to the recordings, by both sides claiming rights, was "spotty."  Therefore, the case was remanded for trial.