Stairway steep to beat Led Zepp
Judges consistently challenge plaintiffs’ attorney
Agroup of federal judges aren’t sure all that glitters is gold, and they don’t seem to be buying that a new trial is necessary in the copyright fight over the Led Zeppelin song, Stairway to Heaven.
Members of an 11-judge panel at a hearing before the 9th US Circuit Court of Appeals in San Francisco harshly and consistently challenged a plaintiffs’ attorney who argued that a new trial is justified and that jurors should be allowed to hear the recorded versions of the songs in the lawsuit that alleged the megahit was stolen from a 1968 song Taurus, by Spirit.
The estate of the late Randy Wolfe of Spirit sued and lost at a 2016 trial that included testimony from Led Zeppelin guitarist Jimmy Page and singer Robert Plant, but a three-judge 9th Circuit panel earlier this year ordered a new trial and Led Zeppelin appealed to the larger group of judges.
The verdict was thrown out over what the three judges unanimously said were poor instructions that should have allowed jurors to consider that combinations of simple elements in Taurus could be original and protected.
But most of the hearing was spent on plaintiffs’ attorney Francis Malofiy’s argument that the copyrighted composition of Taurus should include the song as performed, not merely as written on
paper. Several judges were sceptical.
“You’ve got to get your sound recording in to win, don’t you?” Judge Andrew D. Hurwitz said.
“You lose the case unless you do. A hundred times out of a hundred.”
The album version of
Taurus is far more similar to
Stairway to Heaven than the sheet music, which Malofiy said was a poor transcription.
While the 1909 copyright law that covers Taurus protects the sheet music as deposited with the US Copyright Office, Malofiy said legal precedent allows a “look to other evidence, the best evidence, better evidence,” and that a song’s recorded version can be considered.
Some judges felt that he was trying to use a backdoor to get the recording to be considered part of the copyright and played at trial.
“I’m asking you a question: ‘What work in your view is entitled to copyright
protection?’ It should be simple,” said Hurwitz.
“I don’t think it’s the sound recording that’s copyrighted, I think it’s the composition embodied in the sound recording,” Malofiy said.
At issue is the classic introductory riff to Stairway to Heaven.
Malofiy told the court that Page, who wrote the riff, said he does not even read music, so it’s ridiculous to merely consider the paper version of Taurus.
“What we do know, and what we proved at trial, is that Jimmy Page has five of Spirit’s albums in his record collection.”
Led Zeppelin’s trial win stood in contrast to other recent high-profile cases. Jurors decided in a 2015 trial that Robin Thicke’s Blurred Lines copied Marvin Gaye’s Got to Give It Up and a jury earlier this year found that Katy Perry’s hit Dark Horse
copied from a Christian rap song.