952 F.3d 1051 (9th Cir. 2020)
Jimmy Page et al.
“Stairway to Heaven”
Comment by Charles Cronin
The Complaint is a must-see. Not, of course, for any factual or legal presentation and analysis, but rather for the writer’s skillful deployment of art deco font and his signature in red ink that ends in a flourish incorporating the outline of a star. The complaint alleges that defendants are liable for not only copyright infringement but also violation of plaintiff’s “right of attribution” through “falsification of rock ‘n roll history.” (It really states this! Of course US copyright law provides a right of attribution only to creators of copyrightable works of visual art.)
Speculative and ultimately baseless claims like this one would be entertaining but for the fact that they squander federal tax revenues spent on court expenses – not to mention the costs that deep-pocketed entertainers incur defending themselves from fishing expeditions, which they will never recover from typically impecunious plaintiffs.
The complaint avers that there is substantial similarity between the contested works because “… the iconic notes, melody, chord progression, structure, tempo, instrumentation, and feel of ‘Stairway to Heaven’ sound almost identical to Plaintiff’s protected expression in ‘Taurus’.”
In fact, there is no melodic material in the section in question in the plaintiff’s work. The harmonic progression of the arpeggiated chords of both songs is utterly commonplace and not copyrightable expression. Neither are “structure, tempo, instrumentation” when, as here, these elements in both works contain no protectable authorship individually or combined. The plaintiff’s references to “iconic notes” and “feel” are meaningless.
What excited the plaintiff was merely the fact that a portion of the defendant’s song sounds like his. This similarity, however, doesn’t support a claim of infringement of a musical work when, as here, the musical elements of the portions of the songs in issue underlying the recorded sounds of both works contain little or no protectable original expression.
In April, 2016, in denying the defendants’ motion for summary judgement, the court adhered to established juridical belief that “summary judgement is not highly favored on questions of substantial similarity in copyright cases.” The court’s otherwise thoughtful Order goes awry, however, when it considers whether the works have extrinsic commonalities of protected musical expression that a reasonable jury could find substantially similar. In fact, the only truly musical similarity between the works is their opening commonplace descending chord progression, the use of which constitutes little more copyrightable expression than the use of a certain time signature, key, or genre. The court supports its reluctance to dismiss the claim noting the plaintiff’s expert’s finding that “80% of the pitches of the first eighteen notes match, along with their rhythms and their metric placement.” But this assertion is irrelevant on the question of substantial similarity of protected expression, no more probative than, for instance, a claim that two works have exactly the same number of measures, or number of upbeats, or of syncopations.
Like the recent infringement litigation involving Robin Thicke and Pharrell Williams, this claim against Led Zeppelin appears to be simply a gambit to extract a settlement from a well-heeled defendant by capitalizing upon judges’ reluctance to dismiss infringement claims based on their own perceptions of extrinsic and intrinsic similarities between protected expression of musical works. Because of this reluctance, the claims are tried before juries that are typically comprised of individuals less intellectually and musically competent than the judges. This is, of course, a desirable outcome for a plaintiff because it typically allows the plaintiff to present himself as David versus Goliath, i.e., as a victim of greedy and bullying music industry heavyweights that many jurors of modest means would be happy to take down a peg, regardless of the merits of the claim. Faced with this reality, defendants commonly settle to avoid the expense of trial preparation, and the negative press that even spurious claims generate. These regrettable settlements are the outcomes sought by opportunist attorneys representing plaintiffs on a contingency-fee basis, allowing them to obtain a financial windfall while avoiding the cost of trying the case on the merits. Settlement may be the most economically sensible approach for a particular defendant, but settling also encourages others to make speculative assertions of infringement.
Zeppelin prevailed in the district court jury trial, and the plaintiff appealed this outcome. His brief (linked below) claims that the district court unfairly limited the jury’s determination regarding substantial similarity of musical expression to a comparison of the music of the two songs, and not the sounds of the recorded performances in which they were distributed to the public. More interesting, however, are the brief’s imaginative attempts to support its claim of the inequity of the court’s focus on the scope of expression as documented in copyright deposit copies: suppose, it frets, the Copyright Office were to lose or discard a deposit?; and even more concerning (!?) “Submitting 100% Accurate Deposit Copies of Musical Works would Have Been Prohibitively Expensive for Artists.”
In September 2018 the Ninth Circuit vacated the district court’s jury’s decision, ordering a new trial based on its belief that the lower court had erred in its instructions to the jury, thereby prejudicing its members in favor of the defendants. Both parties then petitioned for a review of the appeal by the Ninth Circuit’s full complement of judges, which was (unusually) granted. The en banc rehearing was held 23rd September 2019, in San Francisco. Here is a link to the 9th Circuit webcast of it.
In its opinion of March 9, 2020, the 9th Circuit en banc, restored the district court verdict in favor of Zeppelin, which the 9th Circuit 3-judge panel had previously overturned. The opinion, of about 70 pages, exhaustively reviews the history of the dispute, the development of copyright law affecting musical works, and the legal standards to establish infringement. Most significantly, it determined that the scope of copyrightable expression in a musical work is limited to expression manifest in the copy deposited for registration.
Equally significantly the Court used this dispute as platform on which to align the 9th Circuit with the majority of other circuit courts, in rejecting the increasingly untenable “inverse ratio” rule correlating access with similarity. In short, by doing so the Court determined that the fact that a defendant may have had access to a plaintiff’s work does not affect the degree of similarity between the two works that the plaintiff must demonstrate to establish infringement. (In the Internet Era shouldn’t access to popular culture be considered a given, and of no relevance in infringement claims involving such works? Perhaps it should only be permitted to be used as a defense?)
On August 6, 2020 Michael Skidmore petitioned (link below) the Supreme Court to overturn the 9th Circuit’s en banc decision in favor of Zeppelin. Benighted as this effort (and the petition) may prove to be, one can’t fault his pertinacity.
Complaint (E.D. Pa., 2014): PDF
Denial of Defendant’s Motion for Summary Judgement (E. D. Cal., 8 April 2016): PDF
Plaintiff’s Appeal Brief (9th Cir. 2017): PDF
Ninth Circuit Opinion (2018): PDF
Plaintiff’s Petition for En Banc review (2018): PDF
Defendant’s Petition for En Banc review (2018): PDF
Ninth Circuit En Banc Opinion (2020): PDF
Michael Skidmore’s Petition for a Writ of Certiorari (2020): PDF
Recording Industry Association of America’s Amicus Brief in support of Defendant’s Petition for En Banc review (2018): PDF
Songwriters’ Amicus Brief in support of Defendant’s petition for En Banc review (2018): PDF
Musicologists’ Amicus Brief in support of Defendants-Appellees at En Banc Rehearing (2019): PDF
Sean O’Connor and Institute for Intellectual Property & Social Justice’s Amicus Brief in support of Plaintiff’Appellant (2019): PDF