‘Stairway to Heaven’ back in court in copyright fight

It seems only fitting that the most epic and dramatic of rock songs has resulted in one of the music industry’s most epic copyright fights.

“Stairway to Heaven,” Led Zeppelin’s 1971 megahit, defined rock radio for decades and helped make its credited writers, Jimmy Page and Robert Plant, extremely rich. For the past five years, it has been caught up in a copyright infringement case that has gripped the music industry. In a hearing scheduled today, a panel of 11 federal appellate judges in San Francisco will delve into the song’s authorship.

At issue is who wrote the song’s famous acoustic opening passage — Page and Plant, or Randy Wolfe of the 1960s psychedelic band Spirit. A larger question that could be settled by the court concerns what, exactly, constitutes an original song.

With the music industry shaken by copyright decisions in recent years — like the $2.8 million award that the creators of Katy Perry’s hit “Dark Horse” were ordered last month to pay to a Christian rapper — the Led Zeppelin case has become a cause célèbre for songwriters, intellectualproperty lawyers and even the Trump administration, which took the unusual step of filing a brief in support of Led Zeppelin.

Cases involving “Stairway to Heaven,” “Dark Horse” and Robin Thicke’s “Blurred Lines” have raised questions about which aspects of music can be protected by copyright and which are fair game. Legal experts and music executives alike are hoping for a clarification from the judges of the 9th U.S. Circuit Court of Appeals who will hear the Led Zeppelin case “en banc,” or as a full panel.

“Appeals courts rarely take a case en banc, and they almost never do so in a copyright case,” said Joseph Fishman, an associate professor at the Vanderbilt Law School in Nashville, Tennessee. “So there’s some possibility that the court may take a big swing here.”

In 2014, a trustee for Wolfe’s songs sued Page and Plant, accusing them of stealing the opening to “Stairway to Heaven” from “Taurus,” a 1968 Spirit song written by Wolfe, who died in 1997.

Page and Plant beat the challenge at trial in 2016.

Since then, the case has had a complex history. Last year, an appellate court ordered a new trial, saying the jury had not received proper instructions. But then the 9th Circuit judges voted to hold a new appeal en banc.

Almost anyone who listens to the two songs would say they bear at least some resemblance to each other.

But the “Stairway to Heaven” lawsuit is about composition, not how the song was recorded. Filter out the audio production and performance flashes from Led Zeppelin’s eightminute studio version, and what remains are the song’s basic melodies, chords and structure.

Are they similar enough to “Taurus” to make it a copy?

Questions like that can be difficult for a lay juror to answer. And many litigators and copyright scholars say music cases are especially complex, since they often come down to whether a song’s composition is truly original or draws on elements so common that they are available to any songwriter.

At the 2016 trial, Led Zeppelin’s lawyers argued that what little the two songs had in common — similar chord progressions and a descending chromatic scale — had popped up in music for more than 300 years.

Page even testified that “Stairway to Heaven” was reminiscent of the “Mary Poppins” song “Chim Chim Cher-ee,” from 1964.