Ruling in Laches Case May Cause a Bustle in the Hedgerow

CHICAGOLAWBULLETIN.COM MONDAY, JUNE 30, 2014 ® Volume 160, No. 128 Ruling in laches case may cause a bustle in the hedgerow have rocked to the awesome - He was no doubt thinking about brought within the three-year ness of “Stairway to Heaven” the equitable doctrine of laches, window.” for a long time. Whenever which holds that if a person is INSIDE IP LAW The court did acknowledge that I’m at a wedding, I try to get aware he has a claim but waits an in extraordinary circumstances the band to play this Led unduly long time to assert it, then the laches doctrine might come IZeppelin classic. Not since Czech the claim is foreclosed. into play in determining equitable composer Johann Stamitz (1717- Certainly the members of Spirit remedies, such as injunctive relief, 1757) has a songwriter mastered heard “Stairway” upon its release or in assessing the profits of the the art of the crescendo as Jimmy in late 1970. Randy California said WILLIAM T. infringer attributable to the Page did with “Stairway.” And no in an interview published in 1997 infringement. lyrics can surpass Robert Plant’s that “Stairway” was a “rip-off” of MCGRATH As to the critique that this mysterious tale of the lady who’s his song. But he never did would allow plaintiffs to wait and sure that all that glitters is gold. I anything about it. Randy’s see whether the infringing work have often wondered, what do statement and ensuing inactivity William T. McGrath is a member of makes money, the court said “there these lyrics really mean? Based on were, of course, foreshadowed in Davis, McGrath LLC, where he is nothing untoward about waiting some recent developments, I think the last line of verse three — as handles copyright, trademark and to see whether an infringer’s I figured it out — they are about one of “the voices of those who Internet-related litigation and exploitation undercuts the value of counseling. He is also associate director copyright infringement. stand looking.” of the Center for Intellectual Property the copyrighted work” or to see if As a fan of the song, I was Page may have thought that a Law at The John Marshall Law the harm is too small to justify liti - dismayed to learn that a lawyer supposed infringement that first School. In 2013, he was honored with a gation. from Philadelphia recently filed a occurred in 1970 could not be Lisagor Award from the Chicago The “Taurus” suit comes just as copyright infringement suit against pursued in 2014, but “sometimes Headline Club. He can be contacted at Led Zeppelin plans to re-release Led Zeppelin, claiming that the all of our thoughts are misgiven,” [email protected]. the album containing “Stairway” in haunting strains of “Stairway” as he should have known from a deluxe, remastered edition. were copied from an instrumental verse two. The plaintiff in Petrella is the Under the reasoning of Petrella, song called “Taurus” by the band Page was likely unaware of an daughter of Frank Petrella, who even though “Stairway” was Spirit (1967-1979). The song was important copyright case recently wrote the screenplay to the 1980 released 43 years ago, the plaintiff written by the band’s guitarist, decided by the U.S. Supreme movie “Raging Bull.” After Petrella is not barred from a suit seeking Randy California (who got his Court, Petrella v. MGM (May 19, died, his daughter, Paula, obtained damages resulting from infringe - stage name playing with Jimi 2014), that could have a significant the renewal rights to the copyright ments occurring during the past Hendrix in 1966). impact on the “Taurus” litigation. in 1991. Seven years later, Paula three years. In 1968-1969, before Page and Petrella raised the question informed MGM that its continuing In light of Petrella , Led Zeppelin Plant wrote “Stairway,” Led whether a claim for damages in a exploitation of the film infringed might want to consider engaging in Zeppelin played at several concerts copyright infringement lawsuit her copyright. settlement negotiations. As with Spirit where “Taurus” was brought within the Copyright Act’s Paula repeatedly threatened to “Stairway” wisely instructs, “Yes, performed, so Led Zeppelin clearly three-year statute of limitations take action, but did nothing for there are two paths you can go by, had the opportunity to hear it. could be barred by laches. The nine more years. In 2009, 18 years but in the long run/There’s still That is called “access” and is one court held that it could not, even after first asserting her claim time to change the road you’re on.” of the elements necessary to prove though the claim had been known against MGM, Paula filed suit Settlement efforts are always a copyright infringement. The other for many years. seeking monetary and injunctive good course of action. I have no requirement is to show substantial One might wonder how laches relief. To conform to the separate- idea whether the parties will similarity of protectable elements would come into play if the statute accrual rule, she sought relief only actually enter negotiations, but of the work. of limitations is only three years. It for acts occurring in or after 2006. “it’s whispered that soon, if we all Is there substantial similarity would seem there could be no The district court dismissed the call the tune,/Then the piper will between “Taurus” and “Stairway”? undue prejudicial delay if a suit has case on the grounds of laches, and lead us to reason.” You, reasonable reader, can be the to be brought within three years of the 9th U.S. Circuit Court of After all these years, this is good judges of that. The two songs are the date the cause of action Appeals affirmed. Petrella news for Randy California’s estate. easy to find on the Internet. I won’t “accrues.” A copyright claim admitted that the reason she The estate no doubt takes comfort hazard an opinion, but will simply “accrues” when an infringing act hadn’t filed suit earlier was from the fact that “a new day will note that the lyrics of “Stairway” occurs. The claim against Led because the film had not made dawn for those who stand portend something ominous about Zeppelin would have accrued when money. long,/And the forests will echo with infringement — “And if you listen “Stairway” was first released in The Supreme Court ruled that laughter.” very hard/The tune will come to 1970. Congress, by adopting a rule that So the perplexing lyrics of you at last/When all are one and But you must be careful, “‘cause allows a plaintiff to reach back only “Stairway” have much to say about one is all. … ” you know sometimes words have three years for damages, took copyright litigation, but one Page, when asked about the two meanings.” In copyright there account of the issue of undue delay. mystery remains. It is indisputably lawsuit, said it was “ridiculous.” is the “separate-accrual rule,” For activity within that three-year true that “There walks a lady we Yes, of course — he knew from the which holds that the statute of period, “courts are not at liberty to all know/Who shines white light first line of verse five that there limitations runs separately from jettison Congress’ judgment on the and wants to show /How every - was nothing to worry about — “if each violation. In other words, timeliness of suit.” It held that thing still turns to gold.” The only there’s a bustle in your hedgerow, each infringing act starts a new laches “cannot be invoked to question is, for whom? It definitely don’t be alarmed now.” period. preclude a claim for damages makes me wonder. Copyright © 2014 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company..

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