March 10, 2020

Good times, bad times: Ninth Circuit does away with “Inverse Ratio Rule” in Led Zeppelin copyright case and questions need to prove “access”

By Daniel A. Schnapp

In one of the most anticipated rulings in copyright law in some time, the Ninth Circuit Court of Appeals, en banc, affirmed the judgment of the United States District Court for the Central District of California after a jury trial, rejecting a 2018 ruling by the 3-judge Ninth Circuit Court of Appeals, and ruled in favor of the famous band Led Zeppelin, in a copyright litigation in which the plaintiff alleged that the opening notes of “Stairway to Heaven” infringed a song written by the plaintiff, guitarist Randy Wolfe, known as “Taurus.”

The opinion, which spans 73 pages, is a veritable voyage through the annals of copyright law and, affirms many of the precepts regarding the burdens of proof to establish copying and substantial similarities sufficient to establish copyright infringement. The court’s examination of the evidence presented at trial is arresting, including a passage regarding Led Zeppelin’s guitarist Jimmy Page being questioned regarding his ownership of Wolfe’s album (Page testified that he owned Wolfe’s album that included “Taurus” at the time of writing “Stairway”).

Among other aspects of the decision, the court examined the opening strains of “Stairway to Heaven” to determine whether the usage of particular musical notes, arranged in a particular pattern, were protectable copyright elements or whether or not such sequences of notes belong to all musical artists.

Notably, the Ninth Circuit overruled its prior jurisprudence with regard to the “Inverse Ratio Rule”. The Inverse Ratio Rule has been invoked by courts in the Ninth Circuit, holding that where evidence of access to an original musical work is strong, the burden of proof to show similarities between the original work and the allegedly infringing work are mitigated, in order to give rise to an inference of copying. For example, if a famous musician was alleged to have copied another musician’s song, the Inverse Ratio Rule would reduce the need for that musician to show substantial similarity between the works if access was clearly demonstrated. The Inverse Ratio Rule, which is not part of the copyright statute, has not been adopted by many other Circuit Courts throughout the United States, including the Second Circuit Court of Appeals.

Although the Inverse Ratio Rule therefore reduced, or totally obviated, the need to actually show that the infringing work and the original work overlapped substantially, the Ninth Circuit found that it is virtually impossible to apply the Inverse Ratio Rule in practice. The Ninth Circuit also

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noted that, to the extent showing access to an original work still has meaning, the Inverse Ratio Rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. (Please see our prior alert on proving “access” in copyright infringement cases).

The Ninth Circuit states that having to show “access” to an original copyrighted work is increasingly diluted in “our digitally interconnected world,” and access is often proven merely by the wide dissemination of the copyrighted work. The Ninth Circuit found that, “given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by merely showing that the work is available on demand.”

Thus, the Ninth Circuit sought to balance the playing field for all plaintiff artists alleging copyright infringement, regardless of financial backing, to police and protect their copyrighted works, and made it easier for copyright plaintiffs to bypass proving access, and proceed directly to showing substantial similarity. However, all copyright plaintiffs still need to establish substantial similarity, regardless of financial resources. Time will tell if diminishing the need to show access, but overruling the “Inverse Ratio Rule,” will make it more or less difficult to prove copyright infringement in Federal Courts in California and the Ninth Circuit in the future.

For more information on the content of this alert, please contact your Nixon Peabody attorney or:

— Daniel A. Schnapp at [email protected] or 212-940-3026 — Staci Jennifer Riordan at [email protected] or 213-629-6041 — Ellie L. Heisler at [email protected] or 213-629-6097 — Jason T. Kunze at [email protected] or 312-425-3973