Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Key Takeaways from Led Zeppelin Copyright Decision

Author: Scarinci Hollenbeck, LLC

Date: March 17, 2020

Key Contacts

Back

The Ninth Circuit Court of Appeals recently handed Led Zeppelin a hard-fought copyright victory…

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 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.

Key Takeaways from Led Zeppelin Copyright Decision

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and Composer’s Agreement with Hollenbeck Music Co. (“Hollenbeck”), Hollenbeck registered the copyright in the unpublished musical composition of Taurus, listing Wolfe as the author. As required for registration of an unpublished work under the 1909 Copyright Act, which was in effect at the time, Hollenbeck transcribed Taurus and deposited one page of sheet music (the “Taurus deposit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.

What’s Next? 

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Zoning Laws Explained: What You Need to Know Before Buying Property post image

Zoning Laws Explained: What You Need to Know Before Buying Property

Before buying property, it is critical to determine whether local zoning laws may affect your plans. If you plan to redevelop the property, you will want to confirm that local zoning regulations permit development as intended. If acquiring property that is already developed, you must verify that the use is permitted in the underlying zoning […]

Author: Wendy Rubinstein Quiroga

Link to post with title - "Zoning Laws Explained: What You Need to Know Before Buying Property"
Special Needs Trusts in New Jersey: Planning for Your Loved One’s Future post image

Special Needs Trusts in New Jersey: Planning for Your Loved One’s Future

For parents of a child with a disability, estate planning raises concerns that go well beyond deciding who will inherit their assets. Parents may spend years making sure their child has the right care, services, and support. Eventually, they must also confront a difficult question: Who will take over when they can no longer do […]

Author: George McGowan

Link to post with title - "Special Needs Trusts in New Jersey: Planning for Your Loved One’s Future"
What Every Real Estate Investor Should Know Before Buying a Rental Property post image

What Every Real Estate Investor Should Know Before Buying a Rental Property

Before buying a New Jersey rental property, an investor should verify realistic operating numbers, the property’s legal and regulatory status, lead-based paint and flood compliance, the existing leases and tenant protections, and the right ownership structure. A rental property is more than a piece of real estate; it is an operating business subject to legal, […]

Author: Donald M. Pepe

Link to post with title - "What Every Real Estate Investor Should Know Before Buying a Rental Property"
Can You Change an Irrevocable Trust in New Jersey? post image

Can You Change an Irrevocable Trust in New Jersey?

In New Jersey, an irrevocable trust can sometimes be modified even though its name suggests otherwise, and one of the primary tools for doing so is a process called decanting. Whether decanting is available depends on the specific terms of the trust and the discretion given to the trustee. Key takeaways: New Jersey has no […]

Author: Marc J. Comer

Link to post with title - "Can You Change an Irrevocable Trust in New Jersey?"
How Intellectual Property Valuation Will Impact Business Transactions post image

How Intellectual Property Valuation Will Impact Business Transactions

Intellectual property valuation determines the monetary value of a business’s IP assets, and it drives outcomes in licensing deals, joint ventures, mergers and acquisitions, financing, and ownership disputes. The most valuable assets of a business are often the things that cannot be seen or touched: a proprietary process, a copyrighted work, brand recognition, or the […]

Author: Jay McDaniel

Link to post with title - "How Intellectual Property Valuation Will Impact Business Transactions"
Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls post image

Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls

For New Jersey data center owners and operators, a service agreement may look routine when it is signed. The network is functioning, the vendor is meeting its installation schedule, and the parties have agreed on pricing and performance specifications. The provisions that seem most important at that stage are often the technical ones. That changes […]

Author: George McGowan

Link to post with title - "Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!