Stairway Opens for a Rehearing

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“There’s still time to change the road you’re on,” Led Zeppelin says, hoping a 2016 jury verdict in its favor will be reinstated. On June 10, an 11-judge panel from the Ninth Circuit announced that it would rehear a copyright appeal alleging Led Zeppelin plagiarized the intro of its seminal 1971 hit, “Stairway to Heaven.”

The case started in 2014 when Michael Skidmore, the trustee for late Spirit guitarist, Randy Wolfe, sued Zeppelin members Jimmy Page and Robert Plant for allegedly stealing parts of Spirit’s song “Taurus.” A jury sided with the band in June 2016, finding that the protectable elements of the two songs were not similar enough to establish copyright infringement. Testimony at the trial revealed that Page wrote the music for the song, Plant authored the lyrics, and that both were original. The jury agreed and the case was apparently over.

But two years later, the case was reignited when a Ninth Circuit 3-judge panel held that the original trial judge gave erroneous jury instructions and had “undermined” the allegations by prejudicing the jury. For instance, the court noted that the judge failed to instruct jurors that unprotectable elements of a song can still be protected by copyright law when arranged in creative ways. The 3-judge panel ordered a new trial prompting Zeppelin’s lawyers to seek en banc review – i.e. review by 11 judges from the Ninth Circuit Court of Appeals. Their request was granted on Monday and the panel will hear the case.

Zeppelin believes there could be “widespread confusion in copyright cases” if the jury verdict isn’t reinstated. The band argues that en banc review is necessary to “confirm [the] foundational question” of “whether substantial similarity or virtual identity is required” to prove infringement in this case. This bears on the nature of the alleged similarity, not the nature of the plaintiff’s work, they contend. Zeppelin asserts that when the claimed similarity between the two works is the selection and arrangement of unprotected elements, the Ninth Circuit has “consistently required” virtual identity.

Skidmore also asked for a rehearing, but only on one aspect of the 3-judge panel’s decision: “that the deposit copy lead sheet defines the scope of ‘Taurus’s’ composition under the 1909 Copyright Act because the federal registration deposit created the song’s copyright.” Instead, they argue that Taurus’s copyright protection was determined at common law and conferred from the moment the work was created, before registration. In other words, registration of a song does not shrink the scope of the protected composition, it “simply gave the owner federal protections and jurisdiction,” they assert. The trustee contends that this distinction has serious implications because “[n]early every song composed from 1909 to 1978…was composed on instruments, not sheet music” and the work that was submitted to the Copyright office rarely comprised of all the notes in the musical compositions and was often inaccurate. So if the court’s opinion stands, “most blues, jazz, folk, and rock and roll music composed before 1978 is now no longer copyrighted.”

The case is scheduled for oral arguments before the 11-judge panel the week of September 23.

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