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DEVOTED to INTELLECTUAL PROPERTY LITIGATION & ENFORCEMENT Edited by Gregory J MAY/JUNE 2020 VOLUME 26 NUMBER 3 DEVOTED TO INTELLECTUAL PROPERTY LITIGATION & ENFORCEMENT Edited by Gregory J. Battersby and Charles W. Grimes Litigator® Copyright Litigation against each other. While Skidmore’s expert, Dr. Alexander Stewart, acknowledged that a chro- Ira Sacks and Evelina Gentry matic scale and arpeggios are com- mon musical elements, he found Taurus and Stairway to Heaven similar because the descending Led Zeppelin In 1971, Led Zeppelin released chromatic scales in the two compo- Prevails in Stairway to Heaven, written by sitions skip the note E and return to Jimmy Page and Robert Plant. the tonic pitch, A, and the notes in Stairway to Wolfe died in 1997 and in 2014 the scale have the same durations. Heaven Copyright a co-trustee of his trust, Michael Led Zeppelin’s expert, Dr. Lawrence Skidmore, filed a suit alleging Ferrara, testified that the two com- Battle that Stairway to Heaven infringed positions are completely distinct. the copyright in Taurus because Dr. Ferrara testified that the simi- Nearly 40 years after Led Zeppelin the opening notes of Stairway to larities claimed by Skidmore either released Stairway to Heaven— Heaven are substantially similar to involve unprotectable common viewed by many as one of the great- the eight-measure passage at the musical elements or are random. est rock songs of all time—Led beginning of the Taurus deposit The jury returned a verdict for Zeppelin was sued for copyright copy. The claimed portion includes Led Zeppelin. The jury found that infringement. The estate of guitar- five descending notes of a chro- Skidmore owned the copyright to ist Randy Wolfe, who composed matic musical scale. The beginning Taurus and that Led Zeppelin had Taurus in 1968, claimed that Led of Stairway to Heaven also incorpo- access to Taurus, but that the two Zeppelin and its guitarist Jimmy rates a descending chromatic minor songs were not substantially similar Page and vocalist Robert Plant chord progression in A minor. The under the extrinsic test. Following copied portions of it. After a six- composition of Stairway to Heaven, the verdict, the district court entered year-long court battle, the en banc however, has a different ascending a judgment and an amended judg- Ninth Circuit Court of Appeals (the line that is played concurrently with ment. Skidmore appealed. “Court”) upheld a jury verdict in the descending chromatic line, and A panel of the Ninth Circuit favor of Led Zeppelin finding that a distinct sequence of pitches in the vacated the amended judgment the two songs are not substantially arpeggios, which are not present in in part and remanded for a new similar. Additionally, in a decision Taurus. trial. The circuit granted rehear- that will broadly impact the music The district court ruled that under ing en banc. At the outset, the en industry, the Court overturned the the 1909 Act, the scope of the copy- banc Court explained that the 1909 so-called “inverse ratio rule,” a prec- right was circumscribed by the Act controls Wolfe’s copyright in edent that has governed copyright musical composition transcribed Taurus, which was registered in cases in the Ninth Circuit for the in the Taurus deposit copy. Thus, 1967, that is, nine years before the last 43 years. Of the eleven judges only the one-page Taurus deposit more expansive 1976 Copyright Act sitting en banc, 8 judges joined the copy, and not a sound recording, came into effect. The Court found majority opinion, one judge con- could be used to prove substan- that the district court correctly con- curred, except for one portion, and tial similarity between Taurus and cluded that under the 1909 Act, the two judges concurred in part and Stairway to Heaven. On the same Taurus deposit copy circumscribes dissented in part, comprising a total grounds, the district court excluded the scope of the copyright. of 73 pages in the slip opinion. from evidence Taurus sound record- The Court explained that to Wolfe wrote the instrumental ings and expert testimony. The key claim copyright in a musical work song Taurus in or about 1967. In issues at trial were: access to Taurus under the 1909 Act, the work December 1967, Wolfe’s copyright by Led Zeppelin band members had to be reduced to sheet music. in the unpublished musical com- and substantial similarity. On the Specifically, copyright protection position of Taurus was registered access question, Page testified that for unpublished musical work could and deposited a transcribed copy of he owned “a copy of the album that be obtained “by the deposit, with Taurus (the “Taurus deposit copy”) contains Taurus,” while denying any claim of copyright, of one complete with the United States Copyright knowledge of Taurus.” copy of such work” (1909 Act, § 11) Office, as required by the 1909 The substantial similarity ques- with the Copyright Office, and pub- Copyright Act (the “1909 Act”). tion pitted two expert musicologists lished work could be secured by MAY/JUNE 2020 IP Litigator 1 affixing a copyright notice “to each (2) the sufficiency of the district rule, and analysis by academics and copy thereof published or offered court’s originality instructions; and commentators. Additionally, the for sale in the United States by (3) the failure to give a selection Court noted that the concept of authority of the copyright propri- and arrangement instruction. The “access” is increasingly diluted in etor.” (Id., § 9.) The 1909 Act pro- Court affirmed the district court’s our digitally interconnected world hibited the destruction of copies of challenged jury instructions and, and, thus, access is often proved unpublished works without notice significantly, abrogated the inverse by the wide dissemination of the to the copyright owner. (1909 Act, ratio rule. copyrighted work. Indeed, given §§ 59–60.) The Court explained that The Court explained that copy- the many ways of accessing media distributing sound recordings did right infringement cases often boil online, access may be established by not constitute publication under the down to the crucial question of sub- a trivial showing that the work is 1909 Act and, in fact, the Copyright stantial similarity, which is linked to available on demand. Consequently, Office did not even accept sound the issue of access. The inverse ratio the Court concluded, the inverse recordings as deposit copies. rule requires a lower standard of ratio rule unfairly advantages those Based on the foregoing, the Court proof of substantial similarity when whose work is most accessible by rejected Skidmore’s argument that a high degree of access is shown. lowering the standard of proof for the copyright extends beyond the Consequently, the stronger the evi- similarity. sheet music. Accordingly, the Court dence of access, the less compelling The Court emphasized that held that it was not error for the similarities are required for an infer- nothing in copyright law suggests district court to decline Skidmore’s ence of copying. that work deserves stronger legal request to play the sound recordings The Court held that the rule is not protection simply because it is of Taurus or to admit the recordings a part of the copyright statute, defies more popular or owned by better- on the issue of substantial similarity. logic, and creates uncertainty for the funded rights holders. Finally, the The Court also held that proof courts and the parties. The Court Court noted, the inverse ratio rule of copyright infringement required noted that the majority of other improperly dictates how the jury plaintiff to show: (1) that he owned circuits, that is, the Second, Fifth, should reach its decision, which is a valid copyright in Taurus; and Seventh, and Eleventh Circuits, by preponderance of evidence (in (2) that Led Zeppelin copied pro- declined to adopt the inverse ratio civil cases) and not by a judge-made tected aspects of the work. The rule, and that only the Ninth Circuit “inverse burden rule.” For all these Court explained that the second and Sixth Circuit have endorsed reasons, the Court joined other prong contains two separate com- it. However, even within the Ninth circuits and abrogated the inverse ponents: “copying” and “unlawful Circuit, the application of the rule ratio rule. appropriation.” A plaintiff may has been inconsistent because it was The Court also affirmed the dis- prove copying circumstantially by unclear whether the rule applied to trict court’s originality instruc- showing access and striking simi- the element of actual copying or tions. Skidmore argued that Jury larity. The hallmark of “unlawful unlawful appropriation. Instruction 16 characterizing appropriation” is that the works The Court explained that the lack “descending chromatic scales, share substantial similarities. Both of clear guidance was likely due to arpeggios or short sequence of an extrinsic and an intrinsic test the use of the term “substantial sim- three notes” as examples of “com- must be satisfied for the works to be ilarity” both in the context of copy- mon musical elements” was preju- deemed substantially similar. Here, ing and unlawful appropriation. The dicial to him. The Court explained there was no dispute regarding Court, however, explained, access is that, while the copyright originality Taurus ownership and Page’s admis- relevant only in establishing the act bar is low, copyright does require at sion that he owned a copy of Taurus of copying, not in establishing the least a modicum of creativity and demonstrated access. The jury, how- degree of copying: once copying is does not protect every aspect of ever, concluded that the works were established, access is irrelevant and a work; ideas, concepts, and com- not substantially similar and, thus, the inquiry shifts to the final stage mon elements, such as common or because the extrinsic test was not of the infringement analysis, that is, trite musical elements, are excluded.
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