The Ninth Circuit Court of Appeals recently handed Led Zeppelin a hard-fought copyright victory. The federal appeals court ruled in Skidmore v. Led Zeppelin that the band classic song, Stairway to Heaven, did not infringe on the 1968 song Taurus by the rock band Spirit. In reaching its decision, the Ninth Circuit made several rulings that will impact the larger music industry, including those regarding the differences between the 1909 and 1976 Copyright Acts, the inverse ratio rule, and the scope of music copyright.
Alleged Copyright Infringement
The lawsuit, first filed in 2014, alleges that the introduction of Stairway to Heaven infringed Taurus, a song written by guitarist Randy Wolfe and performed by his band Spirit. The suit was filed by Michael Skidmore, Trustee for Wolfe’s estate (“Skidmore”).
As detailed in the Ninth Circuit’s opinion, Wolfe wrote the instrumental song Taurus in 1966 or 1967. Pursuant to an Exclusive Songwriter’s and Composer’s Agreement with Hollenbeck Music Co. (“Hollenbeck”), Hollenbeck registered the copyright in the unpublished musical composition of Taurus, listing Wolfe as the author. As required for registration of an unpublished work under the 1909 Copyright Act, which was in effect at the time, Hollenbeck transcribed Taurus and deposited one page of sheet music (the “Taurus deposit copy”), with the United States Copyright Office.
More than 40 years later, Skidmore filed a suit alleging that Stairway to Heaven infringed the copyright in Taurus. Skidmore specifically claims that the introduction of Stairway to Heaven is substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy. The district court concluded that the Taurus deposit copy, rather than any recordings of Spirit’s performance of Taurus, opposed to the actual underlying composition which is at issue, formed the sole benchmark for determining substantial similarity. It also refused to instruct the jury regarding the inverse ratio rule, which provides that there is “a lower standard of proof of substantial similarity when a high degree of access is shown.”
The jury returned a verdict for Led Zeppelin, finding that Skidmore owned the copyright to Taurus and that Led Zeppelin had access to Taurus, but that the two songs were not substantially similar. After a panel of the Ninth Circuit vacated the district court’s judgment in part and remanded for a new trial, the federal appeals court granted rehearing en banc.
Standard for Infringement
The Ninth Circuit affirmed the district court’s judgment in favor of Led Zeppelin. In so ruling, the court emphasized that proof of copyright infringement required Skidmore to show: (1) that he owned a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work. As the court explained, the second prong contains two separate components: “copying” and “unlawful appropriation.” A plaintiff may prove copying circumstantially by showing access and striking similarity. The hallmark of “unlawful appropriation” is that the works share substantial similarities.
Copyright Act of 1909
The Ninth Circuit further 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. As explained by the court, the 1976 Copyright Act represented a dramatic shift in U.S. copyright law in that it provided that public distribution of a sound recording qualified as publication of a musical composition. Accordingly, composers could submit a recording rather than sheet music as the deposit copy for a musical composition.
In ruling that the 1909 Copyright Act controlled, it rejected Skidmore’s argument that copyright protection should extend beyond the single page of sheet music and that the jury should have been allowed to hear the Taurus sound recording at trial. “Because the deposit copy defines the four corners of the Taurus copyright, it was not error for the district court to decline Skidmore’s request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantial similarity,” the court wrote.
Inverse Ratio Rule
The Ninth Circuit also overruled the inverse ratio rule. In this case, Skidmore maintained that Led Zeppelin had access to Spirit’s songs when the bands were on tour together in the late 1960s.
In support of its decision to strike down the rule, the Ninth Circuit cited that “the majority of those that have considered the [inverse ratio] rule declined to adopt it. The Second, Fifth, Seventh, and Eleventh Circuits have rejected the rule.” The court also noted that the rule has been unevenly applied within the Ninth Circuit.
"As a practical matter, the concept of 'access' is increasingly diluted in our digitally interconnected world," Judge M. Margaret McKeown wrote on behalf of the court. "Access is often proved by the wide dissemination of the copyrighted work. 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."
McKeown added: "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."
Judge McKeown further explained:
Finally, the inverse ratio rule improperly dictates how the jury should reach its decision. The burden of proof in a civil case is a preponderance of the evidence. Yet this judge-made 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.
The Ninth Circuit’s decision is significant in that it held that it was not in error that the jury wasn’t played the original Taurus sound recording at trial. The court also abandoned the inverse ratio rule, which had lowered the bar in certain copyright infringement cases. However, this may not be the end of the story. The case may be appealed to the U.S. Supreme Court, which must then decide whether to take up the case.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Ron Bienstock, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.