The upcoming copyright infringement trial involving Led Zeppelin’s hit, Stairway to Heaven, has recently received a great deal of media attention. In the case Skidmore v. Led Zeppelin, plaintiff, the estate of Randy Wolfe, guitarist and songwriter for the band Spirit, alleges that Led Zeppelin front men Jimmy Page and Robert Plant copied the Spirit song Taurus when they wrote Stairway to Heaven. The jury trial for the Stairway to Heaven lawsuit is set to begin in the Central District of California later this month.
What the Plaintiff Needs to Prove
To prevail on the copyright infringement claim in the Skidmore case, the Estate of Randy Wolfe must prove two things: (1) that Wolfe owned a valid copyright in Taurus; and (2) that Page and Plant copied “protected elements” of Taurus.
Ownership of Valid Copyright
Ownership is not typically a contested issue in copyright infringement cases. In the Skidmore case, however, it is an issue that could put this dispute to rest, since Wolfe possibly created Taurus as what is known as a “work for hire.”
Ordinarily, when a work is created, the ownership in the copyright vests with the author of the work. There is an exception, however, when the work is created as a “work for hire.” As Taurus was written before 1976, the 1909 Copyright Act will control on this issue. Under the 1909 copyright act, the Supreme Court has defined a "work for hire" as a work “made by employees in the regular course of their employment.” The Ninth Circuit Court of Appeals, the controlling law of the case, evaluates a work for hire under the 1909 Act by asking whether it was created at the “instance and expense” of the engaging party.
“Work for hire” will be a key issue in the Skidmore case, because in 1967, Wolfe entered into an exclusive songwriter agreement with a publishing company, Hollenbeck Music. This agreement deemed Wolfe to be a “writer for hire” with “full rights of copyright renewal vested in Hollenbeck.” The jury will need to determine exactly when Wolfe wrote Taurus, a date that is currently in dispute by the parties. If the jury finds that Taurus was created after Wolfe entered the agreement, the case would end there, leaving Page and Plant victorious.
Copying of Protected Elements
If Wolfe establishes that he owns the copyright in Taurus, he then must prove that Page and Plant copied protectable elements of Taurus. A plaintiff can prove this in two ways: 1) by direct evidence of copying, or 2) the defendant had access to plaintiff's work when creating its own work, and that the two works are “substantially similar.” Alternatively, in the absence of any proof of access, a plaintiff can still make out a case of infringement by showing that the works were “strikingly similar.”
In this case, the Court has already ruled in favor of Plant and Page, deciding that no evidence of direct copying or striking similarity exists. As such, the jury will only be able to find infringement if they determine Plant and Page had access and the two songs are substantially similar.
"...in the absence of any proof of access, a plaintiff can still make out a case of infringement by showing that the works were “strikingly similar.”
Another blow to Wolfe is the Court’s ruling that access cannot be presumed, because Taurus was not “widely disseminated.” Wolfe will need to prove that Page and Plant had actually heard Taurus before they wrote Stairway. To that end, the jury will hear testimony of Led Zeppelin and Spirit playing at the same festival, on the same day, on three separate occasions between 1968 and the release of Stairway to Heaven in 1971.
However, there is conflicting testimony concerning whether Spirit played Taurus at any of those shows, or whether Zeppelin even saw Spirit perform. If the jury concludes that Page and Plant never heard Taurus, Wolfe’s case will essentially be over. If the jury determines that Page and Plant did have access, Wolfe will then need to prove substantial similarity in order to prevail.
Proving "Substantial Similarity"
Simply stated, “substantial similarity” means there is a strong resemblance between a copyrighted work and an allegedly infringing work. The standard for substantial similarity is whether an ordinary person would conclude that the alleged infringement has appropriated “nontrivial amounts” of the copyrighted work’s protectable elements.
The issue of substantial similarity is one to which social media has done a great disservice in this case. Although many people have come across comparisons of the recordings of two songs, it is the compositions as opposed to the sound recordings that are at issue in this case. As the Court noted in its ruling on the summary judgment motions, “[s]ound recordings and their underlying musical compositions are separate works with their own distinct copyrights.... Accordingly, the court must first determine what elements of Plaintiff's work are protected by his copyright in the musical composition, as opposed to those protected by the copyright in the sound recording, and 'filter out' the latter.”
What Elements can be Copyright Protected?
Thus, Wolfe’s only valid copyright claim lies in the musical composition of Taurus, not the sound recording, since Congress did not extend federal copyright protection to sound recordings until the Sound Recording Act of 1971, and then only to sound recordings fixed after February 15, 1972. To make his case, Wolfe will need to rely on the sheet music for Taurus that was originally filed with the Copyright Office. Most importantly, the Court has ruled that the jury will not hear the recording of Taurus.
What is left for the jury to decide is if any elements of the sheet music are protectable, and whether or not Stairway, when viewed by an ordinary observer, is substantially similar to those protectable elements. In terms of music, elements like chord changes and harmony are not considered to be “protectable elements,” as they are so commonly used that giving them protection would rob other composers of building blocks to create new compositions. For example, a “blues” song typically follows a twelve-bar, three chord progression, known as a “I-IV-V.” If this chord progression was a protectable element, then there would only be one “blues” song.
"In terms of music, elements like chord changes and harmony are not considered to be “protectable elements..."
The jury will hear testimony that the descending chord changes in both Taurus and Stairway have been used in Western music for centuries, and that any similarity between the two are solely non-protectable elements. Wolfe will, of course, more than likely present an expert that will say the opposite. While it is tempting to go into a prolonged analysis, the reality is that this determination is extremely subjective, and it is “coin toss” as to what a jury will decide.
Therefore, if Wolfe can prove that: (1) he, and not his publishing company, owns a valid copyright in Taurus; and (2) that Page and Plant had actual access to Taurus when writing Stairway, and the two are substantially similar, then he will have proven copyright infringement. Does this mean that the estate will then be entitled to a substantial monetary award? Not yet; if Wolfe’s estate successfully prevails on these issues, there will still be additional hurdles to clear before the case is over.
The Affirmative Defenses of Abandonment and Waiver
An affirmative defense is a justification that, if proven, would eliminate liability even if the plaintiff proves all its allegations. In other words, the defendant is saying that “even if I did everything of which the plaintiff accuses me, I cannot be held liable because of this mitigating affirmative defense.” If an affirmative defense is asserted, the defendant is not admitting liability; he is allowed to offer the affirmative defense while still denying liability outright.
In the Stairway case, Page and Plant have asserted the affirmative defenses of abandonment and waiver. In copyright law, waiver or abandonment occurs only if there is an intent by the copyright owner to surrender rights in his work. Unlike the copyright infringement claim where Wolfe had the burden of proof, here the burden of proving the affirmative defenses falls on Page and Plant. That means that even if the jury decides that copyright infringement exists, if the jury finds that Page and Plant offer evidence proving that Wolfe intentionally surrendered his rights in Taurus, Page and Plant are will not be liable for copyright infringement.
During the trial, the jury will hear an audio recording on an interview in which Wolfe said “I'll let [Led Zeppelin] have the beginning of Taurus for their song without a lawsuit.” Wolfe will present evidence of the tenor of the interview, which indicates that he felt cheated by Led Zeppelin, and was merely trying to “save face” and make light of a bad situation. Several pieces of evidence seem to demonstrate that Wolfe acted in a manner inconsistent with an intent to abandon his rights. If, and only if, the jury determines that Wolfe did not abandon or waive his rights will Wolfe prevail on his claim and, at that point, the jury will award damages. Even then, however, the Court has made several rulings that could severely limit the amount of damages Wolfe would receive.
The Court has already ruled that if Wolfe owns any part of Taurus, it is only 50%. Therefore, if he prevails, Wolfe will only be entitled to half of any damages the jury awards. Further, in the summary judgment decision, the Court stated that it was “sympathetic” to Plant and Page regarding the four decade delay in Wolfe bringing the lawsuit. While the Court declined to completely bar any damages, it stated that Page and Plant can ask the Court to reduce the damages “in an amount commensurate with the delay, and the Court will consider the issue again at that time.” Finally, the Court has limited damages to those profits earned by Stairway only in the United States.
The Court has also ruled that the jury will not hear any evidence of other Zeppelin songs that were found to have infringed on other compositions, nor will it hear evidence of Zeppelin’s drug and alcohol use. Moreover, the Court has also excluded evidence of Page and Plant’s wealth, and has also limited the length of the trial, giving each side only ten hours to present their cases.
"Even if it proves infringement and Page and Plant fail to prove their affirmative defenses, the Court’s rulings on damages could severely limit the recovery in court."
For all of these reasons, (pardon the pun), the Wolfe Estate has a very steep stairway to climb to prevail in this lawsuit. Even if it proves infringement and Page and Plant fail to prove their affirmative defenses, the Court’s rulings on damages could severely limit the recovery in court. However, it is important to note that that a small damages award would not be the only economic benefit the estate would receive if it prevails. Going forward, the Estate would be entitled to a share of the income earned by the composition of Stairway to Heaven, which, needless to say, is hardly insignificant. Stairway earns income through radio and television plays, sales of recordings of the song, use in films and by public performances. Despite a potentially small (in relative terms) monetary judgement, the true economic benefit could be reaped through the money Stairway is to earn going forward.
Despite what may have been seen on social media, this case is far more complicated than what has generally been presented as “the two recordings sound alike.” As discussed, the jury could determine that Taurus was created as a “work for hire” or that Wolfe intentionally surrendered his rights. In either of those scenarios, Page and Plant would prevail and any similarities between Taurus and Stairway to Heaven would not even be relevant to the verdict.
It’s been a long time since these songs were written. The jury will not come from the land of the ice and snow, nor from the midnight sun where the hot springs blow, but from in and around Los Angeles area. What the jury will have to decide is not as hard, hard, hard as it seems. They will not be dazed and confused. They will listen to the evidence, make the determinations discussed above and render their verdict. But whichever way the verdict goes, it's just a spring clean for the May Queen.