LOS ANGELES DAILY JOURNAL PERSPECTIVE WEDNESDAY, NOVEMBER 26, 2014 • PAGE 5 Stairway to Heaven, or to the jury room? By Corey Field that includes copious detail on melody, harmony, bass lines, ar- rangements and extensive musi- andy California, born cal notation examples, which are Randy Craig Wolfe, was always interesting to see in court a 1960s rock and roll opinions, especially for those child prodigy guitar- who can read musical notation. Rist, singer and songwriter who But mere alignment of notes may was mentored by Jimi Hendrix not tell the whole story of what is and co-founded the band Spirit, original to the author, and what which released its first LP in constitutes common elements. 1968 when Randy was still just 16 In the “Blurred Lines” case, the years old. Wolfe’s song recorded court found there was a genuine with Spirit, “I Got a Line on You” issue of material fact, and denied is perhaps his most enduring, summary judgment. and gloriously high energy hit. Some of the more well-known Spirit’s eponymous debut al- song copyright infringement bum included an instrumental holdings include a holding in track titled “Taurus,” a mel- 1976 that George Harrison had low instrumental anthem with subconsciously infringed the dreamy orchestra interludes pop song “He’s So Fine” when supporting an arpeggiated he wrote “My Sweet Lord” quasi-classical guitar solo in a (Bright Tunes Music v. Har- minor key. Its orchestrations risongs Music, 420 F. Supp. 177 and slow descending bass notes (S.D.N.Y. 1976)), and the 9th might, to some, evoke the mood U.S. Circuit Court of Appeals’ of earlier rock/orchestra fusion affirmation of a jury verdict that hits like Procul Harum’s 1967 Michael Bolton’s song “Love Is recording “A Whiter Shade of a Wonderful Thing” infringed Pale.” In those heady days of the Isley Brothers’ song of the 1967, rock/orchestral/classical same title (Three Boys Music v. fusion was in the air — witness Michael Bolton, 212 F.3d 477 The Beatles 1967 landmark “A (9th Cir.2000)). But there are Day in the Life,” also featuring also many unsuccessful in- descending bass notes and an fringement cases, and cases that orchestral interlude. settle. For an extensive review Wolfe was not only a talented of cases filed, results (including composer and guitarist, but a cases that reportedly settled), good judge of talent in other mu- and the actual musical examples sicians, as shown during Spirit’s comparing the works, Columbia 1968 tour that included as an Law School and The USC Gould opening act an unknown band School of Law offer the invalu- from England called Led Zep- able web site “Music Copyright pelin. On the tour, Led Zeppelin, Infringement Resource,” avail- and its guitarist Jimmy Page, able at http://mcir.usc.edu/. even covered a Spirit tune, before It may be some time before busting out over the next years as the copyright issues come to one of the greatest rock bands of the fore in the Wolfe Trust v. Led all time. The members of Spirit Zeppelin case. If the claims sur- and Led Zeppelin knew each vive summary judgment, it may other, and each other’s music. indeed be a jury that finds itself Following an active multi-de- the ultimate fact finder of where cade career, Wolfe tragically died the creative spark actually exists in an ocean swimming accident in a musical work. on Jan. 2, 1997, in Hawaii, after Associated Press heroically saving the life of his Robert Plant, lead singer of Led Zeppelin, Atlanta, Georgia, May 5, 1973. Corey Field is the principal son from a rip current. A Califor- author of the treatise “Entertain- nia trust was established to man- alleging, inter alia, that “Stair- 1960s “Baroque Pop” Pachebel’s since the 1985 “Live Aid” concert. ments to determine what parts ment Law: Forms and Analysis” age his posthumous business way to Heaven” infringed the “Canon in D”), and taking all As of this writing, briefing is com- of the plaintiff’s work constitute published by Law Journal Press, affairs, which included publish- copyright in Wolfe’s “Taurus,” possible sides, musical, legal pleted and the court has not sub- original creative expression, and New York. He is a former presi- ing and recording agreements and that the music publishing and emotional, in the debate stantively ruled on the motion. whether there is a question of fact dent of The Copyright Society of signed during his life. The origi- and recording agreements Wolfe over whether Led Zeppelin had Should the case go forward, as regards unauthorized copying the U.S.A., and teaches a class at nal trustee was Wolfe’s mother, signed as a minor were void, al- “ripped off” another musician, or perhaps in California, what of that original expression. UCLA Extension titled “Copyright and after her death, the trustee is legedly giving the trust copyright had merely been “influenced” by awaits the litigants? In copyright If the plaintiff’s case survives Law in the Entertainment Indus- alleged to be Michael Skidmore, ownership of “Taurus” and stand- a good idea from Wolfe, or from cases, the plaintiff must show summary judgment, the “intrin- try.” He is of counsel at Ballard a Massachusetts resident. ing to sue. Apparently focusing other musicians, or had used that the defendant (1) had access sic” analysis then focuses on the Spahr LLP. Follow Corey on Twit- In 1970, Jimmy Page and Rob- on portions of the guitar solo in common public domain sources. to the copied work; and (2) cop- protectable and original expres- ter: @copyrightnotice. ert Plant composed the vocal “Taurus” and the opening guitar For the moment, the central ied protectable elements, such sive creative elements, and asks track “Stairway to Heaven,” with solo of “Stairway to Heaven,” copyright law issues of access, that there is substantial similar- whether the defendant infringed, its iconic opening arpeggiated the suit alleged that “[p]arts of substantial similarity, and the ity between the two works. Key a subjective question for the ulti- guitar solo in a minor key, fea- Stairway to Heaven, instantly rec- ultimate issue of infringement to this analysis is whether the mate finder of fact, the jury. turing a descending bass line. ognizable to the [sic] music fans (and the presumed defenses defendant copied the plaintiff’s On summary judgment, ex- The song was released in 1971 across the world, sound almost including laches) are not yet cen- protectable original creative pert opinions are commonly pre- on an untitled album commonly identical to significant portions ter stage. The defendants have expression, or simply used com- sented by both sides. A recent referred to as Led Zeppelin IV. It of Taurus.” Thus the suit is not filed a motion to dismiss based mon or “stock” musical phrases example in the Central District became an instant classic and is over the entire song, but portions on lack of jurisdiction in Penn- and materials, fundamental of California shows how detailed regarded as one of the greatest of the iconic guitar solo. sylvania, or in the alternative to building blocks not protected and scholarly such opinions have rock songs of all time. The case has generated con- transfer the case to the Central by copyright, such as common become. In Pharrell Williams et Forty-three years later, in 2014, siderable interest in the press District of California, the site of chord progressions and melodic al. v. Bridgeport Music Inc., 13- Michael Skidmore, as trustee for and online, its “David vs. Goli- Wolfe’s trust, and the location of components. 06004 (C.D. Cal., filed Oct. 30, the Randy Craig Wolfe Trust, ath” posture irresistible to many, many of the potential witnesses. In California and other ju- 2014), the parties are litigating filed a lawsuit in the Eastern Dis- and in the age of Youtube it has In support of the motion to risdictions there is a two-step whether the recent song “Blurred trict of Pennsylvania against Led generated fascinating videos dismiss, Jimmy Page and Robert analytical process: first, on sum- Lines” infringes song copyrights Zeppelin, its surviving individual comparing the two songs, find- Plant submitted declarations stat- mary judgment, the “extrinsic” of R&B legend Marvin Gaye. In members including Plant and ing alleged common sources ing they had no recent contacts analysis objectively tries to filter the court’s summary judgment COREY FIELD Page, and several music publish- for the guitar solos (including with Pennsylvania, and had not and separate out the common opinion there is a detailed dis- Ballard Spahr ing and recording companies, the 17th century influence on performed there as Led Zeppelin garden-variety musical ele- cussion of three expert reports A band of little Big Brothers: the privacy merchants By Amitai Etzioni “cookies,” and some people have financial records. However, are outed by the media, or when the government has made with and intelligence work overseas learned to protect themselves corporations can readily discern banks call in the loans of those privacy merchants is unknown and that often benefit from be- from this tracking by employing much about a person’s medical, they discover to have cancer, because many of the contracts ing freer to act than government he American public software that makes it possible financial or other information by or when employers refuse to are classified. However, a 2006 personnel. It would also leave the has long understood to clear cookies from one’s com- using “innocent” facts or other hire people after finding out government study found that privacy merchants free to act in rights, first and fore- puter. However, corporations information that the law does their political or religious views, at least 52 federal agencies had ways that “chill” expression and most, as protecting the have recently started to install not privilege. those private agents have vio- launched — or were planning to action as long as they limit their Tindividual from the state. During “super cookies” that are very dif- One may argue that these lated privacy in a manner about launch at the time of the study work to the private sector. discussions of privacy violations, ficult to detect and, if removed, corporations merely use this as consequential as if the same — at least 199 such projects. Another approach would be to the first that typically comes to secretly re-install themselves. information for commercial violations had been carried out And that was nearly a decade hold that various existing privacy mind is “Big Brother” — that The public may also be unaware purposes, while the government by the government. ago. protection measures, beginning is, the state. Most informed citi- that major mobile telecommuni- could use it to jail people, sup- Most important, the informa- In short, it matters little with the Fourth Amendment, zens probably know by now that cations companies offer services press free speech, and otherwise tion amassed by privacy mer- whether databanks loaded with apply to private actors and not corporations collect information by which lovers, ex-spouses, violate their rights. In a recent chants is often made available extensive dossiers on most adult merely to “Big Brother.” Howev- about them, but they may be lawyers or anyone else can find debate with me, American Civil to the government. Laws may Americans are controlled by the er, this approach would require unaware of the extent of these out a person’s location — and Liberties Union President Susan prevent the government from FBI or some corporate office. At an enormous normative and le- privacy invasions. track their movements — by Herman stated, “There is a big ordering a private company to most, the contents of privately gal transformation, and nothing For example, many may be using the GPS capabilities of the difference between corporate conduct surveillance on its be- held databases are just one indicates that the public or even aware of tracking tools called person’s cellphone. data mining and government half or to generate dossiers that click and one payment away to avant-garde intellectuals are Many corporations track us- data mining. The last time I the government itself is banned government agencies. Because prepared for it. Meanwhile, most ers’ activity on their websites looked, Amazon could not arrest from compiling. However, the the American public, many le- people seem to ignore that al- as part of their regular busi- anybody, and Google could not government can and does use gal scholars, and practitioners lowing a band of Small Brothers ness. But for a few corporations, check your income taxes to see data that private corporations continue to treat the public and — the privacy merchants — to shadowing Internet users and whether or not you’re cheating have already amassed. private sectors as if they were freely amass and trade personal creating detailed dossiers about on your taxes. Government has For instance, ChoicePoint had worlds apart, they have given information in effect grants the them is their main line of busi- a whole lot of power.” Susan at least 35 contracts with gov- very little thought to how to deal government unlimited access ness. Call these corporations Herman, “National Security vs. ernment agencies, including the with the two realms are increas- to the same information, not “the privacy merchants.” For ex- Individual Rights: A Debate,” Department of Justice (through ingly fused. because it violates the law but ample, ChoicePoint, which was George Washington University, which it provides its databases One might hold that whenever because it pays private corpora- purchased and renamed in 2008, Nov. 19, 2014. to the FBI), the Drug Enforce- a corporation works for the gov- tions to circumvent the law. had records on more than 220 However, the violations of ment Administration, the Inter- ernment, it should be treated as million people. Acxiom “collects privacy committed by corpora- nal Revenue Service, and U.S. a government agent and be sub- Amitai Etzioni is a university 1,500 data points per person on tions are similar in effect to Citizenship and Immigration ject to the same legal obligations professor at The George Washing- over 700 million consumers,” those committed by government Services. as the government with regard ton University and author of “The according to the Electronic agents, effects that can lead to Even before 9/11, the U.S. to privacy. This would have New Normal: Finding a Balance Frontier Foundation. discrimination and a “chill” on Marshals Service alone per- enormous implications for other between Individual Rights and the AMITAI ETZIONI These privacy merchants can- expression and dissent. When formed up to 40,000 searches of areas, such as the thousands Common Good,” which was just George Washington University not freely trade certain subsets gay people who wish to keep private data banks each month. of private contractors that the released by Transaction Publish- of data, such as medical and their sexual orientation private The exact number of contracts government hires to do military ers in November 2014.