Judge clears 'Stairway to Heaven' copyright case for trial

[Gatopescado]

Hendrix was also a fan of that Good 'Ole Boy from Texas, Billy Gibbons.

[Starving_Artist]

Didn’t know that either. What a shame that so many like Hendrix and Kath died at such an early age. California drowned while successfully saving his son from a rip current. For that reason alone I’m not going to be too upset if his estate/family wind up with some money from the Zeppelin lawsuit, despite the fact I feel it’s quite a stretch to claim that brief riff in Taurus is responsible for StH.

[12mgdaily]

These are not the only 2 songs to contain that particular series of similar notes. Listen to the (same) notes in the song recorded by George Harrison… While My Guitar Gently Weeps. George Harrison- While My Guitar Gently Weeps (Lyrics) - YouTube

[drad_dog]

@Starving_Artist

Interesting. I had no idea, thanks. I have to say though that my impression of California vs. Page consists mostly of having compared Taurus with Stairway to Heaven, and the fact that Spirit had only one hit, which to me was just a pretty standard and routine type of rock song of that era. I liked I Got A Line On You very much but never thought of it as an artistically superior song.

Have you heard “Natures Way”? It was the bigger FM type song. A classic.

BTW: Hendrix gave Randy his name, California.

[drad_dog]

@Starving_Artist

14-year-old groupies were not unusual in those days. I would imagine if Page genuinely kidnapped Maddox and held her captive the law would have come into play at some point during those years they were together. From what little I’ve read he had their road manager pick her up and bring her to him at his hotel room, after which the sex was consensual. (She wasn’t a virgin at the time. Further, her first time was with David Bowie, who somehow doesn’t come in for the shrill ‘child rapist’ label that some like to pin on Jimmy Page.) She fell in love with him and the relationship lasted for some time. All this informed consent stuff, where people capable of driving cars, graduating high school and fighting wars (with parental okay to join the military at 17) are considered incapable of figuring out if it’s okay to have sex with someone is a recent development.

And if Page actually did plagiarize ‘dozens’ of songs I’m fine with it, provided he made out of them the vastly superior and different type of song that Stairway to Heaven is when compared to Taurus.

From what I’ve been able to glean, Page is a friendly, open and approachable guy with a good sense of humor and a real passion for life. So yeah, I thought he was a nice guy before and I still do now.

You could “approach” him and find out.

[Starving_Artist]

Here’s an interesting and educational clip where Page talks about how StH was developed.

[Tamerlane]

My understanding is that virtually all of those gracious Hendrix comments about the abilities of other guitarists ( Terry Kath, Rory Gallagher among them ) are unfortunately apocryphal or at least unverifiable. With the apparent exception of the young Billy Gibbons, where there is actual evidence.

Another virtual unknown and pretty much Hendrix’s only real regular “student” was the late Velvert Turner, who sounds virtually like a Hendrix clone. Not untalented, but didn’t really seem to find his own voice.

[davidm]

“Led Zeppelin did not steal ‘Stairway’ riff, jurors say”
http://www.reuters.com/article/us-music-ledzeppelin-idUSKCN0Z914Z

The guitar riff Led Zeppelin used in the 1971 classic “Stairway to Heaven” differed substantially from one the English band was accused of stealing from the U.S. group Spirit, a jury found on Thursday in a copyright infringement trial in Los Angeles.

[ElvisL1ves]

How was this suit even allowed to proceed? Isn’t 45 years enough for laches to kick in?

[Acsenray]

@ElvisL1ves

How was this suit even allowed to proceed? Isn’t 45 years enough for laches to kick in?

Under Petrella v. MGM (the Raging Bull case), the doctrine of laches doesn’t apply to copyright infringement. A copyright holder always has the right to seek injunctive relief for prospective infringement. The Copyright Act’s statute of limitations provision does however limit any remedy to infringement that happened within three years of the filing of the claim.

[aceplace57]

Very good news. I’m glad Robert Plant and Jimmy Page’s legacy in Rock History will remain intact. They wrote Stairway to Heaven.

This lawsuit seemed so wrong from the beginning. Randy California choose not to sue and that decision should have been respected. For the estate to sue after his death always seemed a bit shallow and greedy.

[Leaffan]

@aceplace57

Very good news. I’m glad Robert Plant and Jimmy Page’s legacy in Rock History will remain intact. …

:dubious:
Well, it’s one less song they didn’t plagiarise without acknowledgement, if that’s what you mean.

I never thought they would lose this one, but holy shit they sure deserved to lose a whole lotta bunch that they did.

[aceplace57]

I don’t know Led Zeppelin’s material well enough to comment on their other songs.

There’s been a lot of discussion about Stairway and Taurus. Hopefully the trial testimony will convince fans that any similarities between Taurus and Stairway were superficial. That’s probably why Randy California choose not to sue. That’s something we’ll never know for sure.

[WordMan]

@Leaffan

:dubious:
Well, it’s one less song they didn’t plagiarise without acknowledgement, if that’s what you mean.

I never thought they would lose this one, but holy shit they sure deserved to lose a whole lotta bunch that they did.

Kind of my mindset, too. I didn’t see this rising to the level of the verses, choruses, whole songs that they did revved-up covers of but didn’t give credit. Not surprised they won; with Willie Dixon and the others, glad Zep had to give credit.

[mhendo]

Not sure if anyone else cares, but this case is still going, and was argued before an en banc sitting of the 9th Circuit last week. A video recording of the arguments before the court can be found here.

Volokh Conspiracy blogger and lawyer David Post wrote about the case today. Post basically argues that Led Zeppelin should have won summary judgment on this already, based on a variety of factors, but particularly related to the timing of the copyright registration, which places the Spirit song’s copyright protection under the 1909 Act, and not the 1976 Act. Post says that this basically means that the style of playing and the “performance elements” present in the recording are not protected, and “therefore cannot be the basis of infringement liability”.

Basically, if he’s right, the “feel” of the song, and general ambience experienced through the performance, which some people in this thread have said is very similar to Stairway to Heaven, is not something that can be considered. It should be the sheet music alone, which was submitted to the copyright office upon registration. He also adds, regarding the 9th Circuit:

The Ninth Circuit has a particularly convoluted jurisprudence regarding the evaluation of infringement claims, requiring courts to apply an “extrinsic” and an “intrinsic” test to determine infringement, tests that one of my colleagues, expressing what I think is the consensus opinion among copyright lawyers and law profs, described as “indecipherable.” One hopes that they use this case to simplify and straighten out their doctrine.

[Garak]

if they win the lawsuit can the pawn shop scene in Wayne’s World finally be restored?

[Leaffan]

@Garak

if they win the lawsuit can the pawn shop scene in Wayne’s World finally be restored?

Huh?

[Asylum]

@Leaffan

Huh?

Story here.

[Leaffan]

@Asylum

Story here.

Interesting. Thank you.

[mhendo]

@mhendo

Not sure if anyone else cares, but this case is still going, and was argued before an en banc sitting of the 9th Circuit last week. A video recording of the arguments before the court can be found here.

I’m going to resurrect this thread one more time, because the 9th Circuit’s en banc ruling came down in early March, just in time to get obliterated from the news cycle by the coronavirus lockdown.

The full court affirmed the district court’s ruling, which has affirmed a trial court jury’s ruling in favor of Led Zeppelin. It appears that legal blogger David Post’s argument, which I summarized in my previous post, was a key issue:

@mhendo

Volokh Conspiracy blogger and lawyer David Post wrote about the case today. Post basically argues that Led Zeppelin should have won summary judgment on this already, based on a variety of factors, but particularly related to the timing of the copyright registration, which places the Spirit song’s copyright protection under the 1909 Act, and not the 1976 Act. Post says that this basically means that the style of playing and the “performance elements” present in the recording are not protected, and “therefore cannot be the basis of infringement liability”.

That’s pretty much what the court said too. From the Summary section of the opinion:

In Part I, the en banc court held that the 1909 Copyright Act, which does not protect sound recordings, rather than the 1976 Copyright Act, controlled its analysis because the copyright at issue was for the unpublished musical composition of Taurus, which was registered in 1967. The scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of Taurus consisted of only one page of music. Accordingly, it was not error for the district court to decline plaintiff’s request to play sound recordings of the Taurus performance that contained further embellishments or to admit the recordings on the issue of substantial similarity.

One of the most interesting aspects of the decision can be found in the main body, on pp. 26-33.

In previous copyright cases, especially those involving music, the 9th Circuit had used something called the “inverse ratio rule,” which basically said that, if the plaintiff can show that the defendant had “a high degree of access” to the allegedly copied song, then the standard of proof required to show “substantial similarity” was lower. That is, under the inverse ratio rule, “the stronger the evidence of access, the less compelling the similarities between the two works need be in order to give rise to an inference of copying.”

Well, in this decision, the 9th Circuit decided to abandon the inverse ratio rule altogether.

Skidmore proposed an inverse ratio rule instruction, but the court chose not to give the instruction. The court reaffirmed this decision when Skidmore raised the question again after the close of testimony: “We’re not going to give that instruction.” Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.

p. 26

They note, in the decision, that circuit courts nationally are split over the use of the inverse ratio rule, and that the rule has been rejected by the 2nd, 5th, 7th, and 11th Circuits. The decision also says that, even within the 9th Circuit, "our embrace and application of the rule have had a ‘checkered application’ " (p. 27). They go through some of the history of the 9th Circuit’s use of the inverse ratio rule, and make some interesting observations about how access works in the modern world:

As a practical matter, the concept of “access” is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work. See Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand. See Brooks Barnes, The Streaming Era Has Finally Arrived. Everything Is About to Change., N.Y. Times, Nov. 18, 2019 (In addition to Netflix, which “entertain[s] more than 158 million subscribers worldwide,” there are currently “271 online video services available in the United States”).

To the extent “access” still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. Thus the rule benefits those with highly popular works, like The Office, which are also highly accessible. But nothing in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.

Finally, the inverse ratio rule improperly dictates how the jury should reach its decision. The burden of proof in a civil case is preponderance of the evidence. Yet this judgemade rule could fittingly be called the “inverse burden rule.”

Although we are cautious in overruling precedent—as we should be—the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work. By rejecting the inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity. We join the majority of our sister circuits that have considered the inverse ratio rule and have correctly chosen to excise it from copyright analysis. In light of this holding, the district court did not err in failing to instruct the jury on the inverse ratio rule.

pp. 31-32

The full decision is 73 pages long. You can read it here (PDF).