Against the Grain Manuscript 8172 Cases of Note- Copyright - Rock Legends and Substantial Similarity Bruce Strauch Bryan M. Carson Jack Montgomery Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Cases of Note — Copyright Rock Legends and Substantial Similarity Column Editor: Bruce Strauch (The Citadel, Emeritus) <[email protected]> MICHAEL SKIDMORE AS TRUSTEE monicker of “Stephen Salacious.” But that breaks the works down into constituent ele- FOR THE RANDY CRAIG WOLFE TRUST sounds like a recommendation. ments and compares them. Swirsky v. Carey, v. ALL THE LED ZEPPELIN GANG AND Led Zeppelin and Wolfe moved in the 376 F.3d 841, 845 (9th Cir. 2004). WARNER MUSIC ET AL. 2018 U.S. APP. same circles. Zep would cover another Wolfe No, the jurors don’t have to have degrees in LEXIS 27680. song “Fresh Garbage.” They both performed Musicology. Expert witnesses are used. Apologies in advance for not knowing squat at concerts together. The intrinsic test is “whether the ordinary about music. But this is much in the news and The Zep gang heard “Taurus” repeatedly. reasonable person would find the total con- seems topical. Jimmy Page owned a copy of the album Spirit. cept and feel for the works to be substantially Randy Wolfe was a California rocker in 1971 brought us “Led Zeppelin IV.” And similar.” Three Boys Music Corp. v. Bolton, the glorious ’60s and was actually given the on it was — you guessed it — “Stairway to 212 F.3d 477, 485 (9th Cir. 2000). This is a nickname “Randy California” by none other Heaven.” subjective comparison. than Jimi Hendrix. In 1997, Randy “California” Wolfe And juries are good at being subjective. How cool is that? drowned in undertow off the coast of Molokai. For victory, the Trust needs a “yea” in Much of Randy’s work was not terribly All his intellectual property was put in a trust both tests. One “nay” knocks them out. The commercial, but he was revered among gui- by his mother. And percolating along was jury found no substantial similarity under the tarists, able to play like Hendrix, Clarence the question of whether Zep had ripped off extrinsic test so they didn’t have to go on to White, Roger McGuinn, or Wes Montgom- “Taurus.” intrinsic. ery, often all within the same song. The Supreme Court decided Notes of a scale are not He wrote the song “Taurus” for his first laches is not a defense for an protected by copyright, but album Spirit released in 1967 by Hollenbeck ongoing copyright violation you can combine unpro- Music which copyrighted it and listed him as in Petrella v. Metro-Gold- tectable elements to be the author. wyn-Mayer, Inc., 134 S. Ct. protectable. Swirsky, ’67 was the Summer of Love for those of you 1962, 1967-68 (2014). 376 F.3d at 848. The not old enough to remember. Hippies gathered Laches is a defense of dork- notes must be combined in Haight-Ashbury; Tim Leary advised “Turn ing around for too long before with enough originality on, tune in, drop out.” The “Human Be-In” at bringing your suit. You can see to make an original work of Golden Gate Park inspired the musical Hair. the reasoning of not a defense when authorship. Satava v. Lowry, 323 The Monterey Pop Festival introduced us “Stairway to Heaven” is beloved of drug users F.3d 805, 811 (9th Cir. 2003). to The Who, Grateful Dead, Big Brother and and still being played ad nauseam. Does that seem like something we need to the Holding Company, Jefferson Airplane, Thus, the trust sued for copyright infringe- be told? Janis Joplin. ment in 2015. At any rate, the district court failed to tell The media went crazy and defined the ’60s Trust claims the opening notes of “Stair- the jury that, but the 9th Circuit saw it as pretty as counterculture and sex, drugs, and rock- way” are substantially similar to those in harmless. “Taurus.” and-roll. In fact, the first half of the decade Because common sense? had been exactly like the ’50s. And American Jimmy Page the famous Zep music com- rubes such as myself only saw the second half poser admitted he owned the Spirit album but More importantly, the district court told the through the pages of Life magazine. had not heard it before he wrote “Stairway.” jury that copyright does not protect “chromatic scales, arpeggios or short sequences of three Led Zeppelin was formed in 1968 by Jim- Which given the concerts, seems untrue. notes.” my Page, Robert Plant, John Paul Jones, and The jury listened to both songs and deter- Little bitty bits are not original. John Bonham. Page (songwriter) and Plant mined that Zep had access to “Taurus” but the (lyrics) of course are legendary in rock history. songs were not substantially similar. Let’s remember that the bar for originality is pretty gosh darn low. It’s minimal creativity. The band, perhaps the most successful and And it went to appeal. influential in history after the Beatles, broke See: Feist Publ’ns v. Rural Telephone Serv. up in 1980 when drummer John Bonham The Ninth Circuit Co., Inc. 499 U.S. 340, 348 (1991). drank a major quantity of vodka for break- The holding of this case is 19-pages long If you recall, that one is about arrangement fast on top of his antidepressant meds and which is an exhausting read of legal gobble-de- of a telephone book. Which seems like a quaint pegged out. goop for me. But paring it down drastically, artifact today, but was an issue a couple of For their fleshly exploits seeStephen Davis, there’s really only one issue of interest — a decades ago. Hammer of the Gods (Wm. Morrow & Co. particular charge to the jury. And the 9th Circuit in Swirsky found that 1985). Mind you, the three surviving members Substantial similarity is required to prove chromatic scales were protectable. hate the book, and the author has the industry unlawful appropriation. The extrinsic test continued on page 56 54 Against the Grain / November 2018 <http://www.against-the-grain.com> Cases of Note Random Ramblings — Sex, from page 54 Chromatic scale is a scale of twelve pitches, Intellectual Freedom, and Academic each a semitone above or below the adjacent one. And that’s completely over my head. Libraries In an arpeggio, you take a chord and play it one note at a time. Okay, I get that. Column Editor: Bob Holley (Professor Emeritus, Wayne State University, The error was not harmless because the 13303 Borgman Avenue, Huntington Woods, MI 48070-1005; Trust’s expert witness testified that Zep had Phone: 248-547-0306) <[email protected]> copied an original chromatic scale. He said “Taurus” had public domain elements that were re academic libraries able to deal with consensual. Furthermore, in X-rated films, modified in an original way. And this would overtly sexually oriented materials women also abuse men. Finally, the pro- go to extrinsic substantial similarity. Arequired by their faculty for teaching ducers of X-rated films can find more than An original element of a song need not be and research? I have two reasons for writing enough willing female and male actors so new; just created independently in a creative this column. First, I’m using it as a practice that issues of sex trafficking are irrelevant way. Swirsky, 376 F.3d at 849. run for a presentation that I’ll be giving at the for mainstream productions. 2018 Charleston Conference. I’ll be exam- The jury charge was dismissive of his tes- The rules for following Constitutional ining the broader question of objectionable timony and contrary to a 9th Circuit holding. principles including freedom of speech are resources in general, but sexual materials will different for private and public academic So this got sent back for a new trial. be a key part of my presentation. Second, I libraries. Private institutions have a much Our son, who was a young teen in the glory was chair of the ACRL Intellectual Freedom greater ability to control the research and days of Led Zeppelin, listened to both intros Committee from 2002-2006 before it was teaching of their faculty. Religious insti- and said he couldn’t hear any similarity. So disbanded. I often heard that intellectual tutions have broader rights to require that trust would lose on the intrinsic test with him freedom wasn’t an issue for academic librar- their faculty and students adhere to certain on the jury. ies, but I strongly disagree. standards as long as doing so does not in- He also had an interesting take on laches. The proximate cause for my research was terfere with civil liberties enshrined in law, He reasoned that Randy California was alive a presentation at Wayne State University e.g., a prohibition against racial discrim- from ’71 to ’97 and heard “Stairway” numer- on December 2, 2017, by Jennifer Nash, ination. Some federal or state programs ous times. How could anyone not hear it? Associate Professor of Gender & Sexuality require further restrictions if the institution Over. And. Over. Studies and African American accepts tax dollars, but many He was pals with Led Zep, and as a mu- Studies at Northwestern Uni- offer exemptions from some sician’s musician, knew how music is put versity.