Daily Business Review

| | FEBRUARY 19, 2016 DAILY BUSINESS REVIEW PRACTICE FOCUS / INTELLECTUAL PROPERTY Decades Later, ‘Stairway to Heaven’ Still in Dispute Commentary by Can the estate climb this In 1968, a then-unknown James G. Sammataro stairway to a judgment in its Led Zeppelin opened for and favor? It’s a steep climb. shared the bill with California’s Randy California always The estate’s first step was band, Spirit — a pioneer of the said so. A guitar virtuoso dis- to overcome a seemingly pre- psychedelic rock sound that covered by Jimi posterous delay of 43 years incorporated delay and distor- Hendrix at age before filing suit. They made tion effects to bend minds and 15, California it thanks to the U.S. Supreme alter moods. Zeppelin covered plucked a dis- Court’s 2014 “Raging Bull” Spirit’s tune “Fresh Garbage” tinct guitar line decision in Petralla v. Metro- during their sets. on his band’s Goldwyn-Mayer, which elimi- In early interviews, Zeppelin 1968 instru- nated the defense of laches guitarist Jimmy Page stated Sammataro mental “Taurus” (undue delay) from copyright how Spirit’s music moved that reminds cases and sanctioned a re- him “on an emotional level.” some of a guitar line from Led volving three-year look back Further, Zeppelin, long ac- Zeppelin’s 1971 smash hit in copyright infringement cused of boosting classic “Stairway to Heaven.” actions. blues songs, is no stranger to Until his death in 1997, The estate’s next step is infringement actions, having California refused to sue. He to demonstrate it has enough settled at least six claims in- just wanted of a case to volving “Dazed & Confused,” an artist’s fair survive a sum- “Babe, I’m Gonna Leave recognition: a BOARD OF mary judgment You” and “Whole Lotta Love” liner credit, a CONTRIBUTORS motion. The U.S. (a prejudicial fact unlikely to be thank you and Court of Appeals presented to a jury but likely to a significant footnote in rock for the Ninth Circuit has embolden plaintiffs counsel). ‘n’ roll lore. Unconstrained set forth an unforgiving by his quaint magnanim- substantial similarity test, SUMMARY JUDGMENT ity, California’s estate sued but the estate appears Yet compelling evidence of Led Zeppelin for infringement capable of marshaling some access and copying will not be in 2014. favorable facts. enough. To prevail, the estate must prove that any copying similarities between Robin rendition of Stairway at was quantitatively and qualita- Thicke and Pharrell William’s the band’s Kennedy Center tively sufficient to support the “Blurred Lines” and Gaye’s Honors. legal conclusion that infringe- 1977 hit “Got to Give it Up,” For counterarguments, ment has occurred. Inspired despite never proving Gaye Zeppelin’s damages experts parrotting is one thing; misap- propriated piracy is another. The latter requires more than a subjective “I know it when Too bad for California’s estate, the lookback I hear it,” but an objective is only three years: as of last count in 2008, examination of protected “Stairway to Heaven” had earned $562 million. and copyrightable elements of expression. The estate, likely aided by owed any of the borrowed ele- would advocate for modest a musicologist’s expert testi- ments: a shared baseline and damages based on a handful mony, must identify specific the use of percussions, hand of musical notes constituting and independently protect- claps, falsetto signing and par- a small fraction of the song’s able notes, chord progres- ty sounds). popular virtues, which in- sions, tone and structure that The final step is prov- clude Robert Plant’s lyrics, the were pilfered. In order to sur- ing damages. Too bad for song’s other layered tidbits vive summary judgment, the California’s estate, the look- and Zeppelin’s enduring suc- estate will likely need to prove back is only three years: as of cess. more than merely a shared last count in 2008, “Stairway Because this is the first A-minor chord and a descend- to Heaven” had earned $562 meaningful copyright claim ing bass line, conspicuously million. Nonetheless, real dol- over a work thought to be le- present in earlier works in- lars could still be in play as gally dead until resuscitated cluding Zeppelin’s “Babe, I’m “Stairway to Heaven” was in- by the “Raging Bull” decision, Gonna Leave You” and George cluded on a recent re-release many in the music industry Harrison’s “While My Guitar album, a battle of the experts will be watching this case Gently Weeps). would be likely. scheduled for a May trial, won- If the estate can survive The estate’s damages expert dering if a new day will dawn summary judgment, it needs to would testify for a generous for those who stand long. convince the jury that protect- share of those album sales on James G. Sammataro is an ed expression was infringed. the rationale that Stairway’s entertainment lawyer, managing Given the human element, this iconic status drove profits not partner of Stroock & Stroock & is often easier than surviving merely for that single song Lavan’s Miami office and the summary judgment as evi- but for the entire re-released author of “Film and Multimedia denced by the 2015 “Blurred album, Zeppelin merchandise and The Law.” Lines” jury verdict. and perhaps any gold that There, Marvin Gaye’s estate glittered down upon Zeppelin prevailed based on perceived subsequent to Heart’s stirring Reprinted with permission from the 2/19/16 edition of the DAILY BUSINESS REVIEW © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. Contact: 877-257-3382 [email protected] or visit www.almreprints.com. # 100-01-17-04 .

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