There is hardly a more iconic song in rock history than Led Zeppelin’s Stairway to Heaven.  That makes it a fitting song to serve as the subject of an important En Banc opinion recently issued by the Ninth Circuit Court of Appeals.  Released in 1971 on Led Zeppelin’s fourth album, Stairway’s iconic opening acoustic guitar notes – the one’s you’re not allowed to play in guitar stores – bear a resemblance to a similar acoustic guitar part appearing in a song titled Taurus, written in 1967 by Randy Wolfe (known professionally as Randy California) for a band called Spirit.  Just how similar, and whether Stairway’s similarity crossed the line into copyright infringement, was the subject of a lawsuit filed in 2014 by the trustee of Randy California’s trust (Mr. California having passed away in 1997), reaching a five-day jury trial in 2016.  

Wait, you’re asking, how could this case be filed in 2014 and gone to trial in 2016?  What about statutes of limitations, laches?  For lesser songs, these defenses surely would apply, but the United States Supreme Court held in 2014 that laches is not a defense to copyright infringement where the infringement is ongoing.  Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 668 (2014).  As anyone with a radio knows, Stairway is still widely played and still generates significant revenue for its writers, Jimmy Page and Robert Plant.  Importantly, the damages available for such ongoing infringement only go back three years prior to filing a lawsuit.  (Led Zeppelin’s other surviving member, John Paul Jones, was dismissed from the lawsuit because he hadn’t performed or distributed Stairway in the three-year statute of limitations period.)

The lawsuit was one of several recent, high-profile copyright infringement lawsuits concerning rock songs and popular music artists.  Perhaps the most impactful of these other lawsuits was filed by Marvin Gaye’s heirs against Robin Thicke and Pharrell Williams, claiming the hit song Blurred Lines infringed on the Marvin Gaye song Got to Give It Up.  Marvin Gaye’s heirs won that lawsuit and a cool $5 million damages award.  Other popular music artists have been hit with similar lawsuits, among them Ed Sheeran and Katy Perry.  Many people within and outside the music industry have expressed concern that the threat of such lawsuits is stifling artistic creativity because, after all, there are only so many notes and so many melodies, especially for tonal, popular songs.  The industry has been closely watching the highest of high-profile cases concerning Stairway to Heaven to see whether the Ninth Circuit’s opinion might limit or expand such lawsuits.

Led Zeppelin prevailed at trial, the jury finding no infringement.  A three-judge panel of the Ninth Circuit reversed, finding errors in the jury instructions.  Led Zeppelin sough review En Banc, and a divided 11-judge panel reversed the three-judge panel, finding no error in the jury instructions.  One judge, Paul J. Watford, filed a concurring opinion arguing that no reasonable jury could find infringement and, as such, whether the jury instructions were erroneous was immaterial.  Two judges dissented.  Sandra S. Ikuta filed an opinion, in which Carlos T. Bea joined, concurring in the majority opinion as to certain findings of law, but dissenting on essentially the same grounds as the three-judge panel opinion, that the trial court omitted a jury instructed requested by the plaintiff that a combination of otherwise unprotectible elements in a song can, as a whole, be copyrightable.  

Understanding the decision requires some knowledge of basic music theory.  In Western music, the musical scale is divided into twelve notes (the “chromatic scale”) between octave notes.  The “Do Re Mi Fa So La Ti Do” scale sung in “The Sound of Music” is the major scale, a seven-note scale that skips five notes of the 12-note “chromatic scale.”  There are many other “scales” and “modes” that are determined by which of the 12 chromatic notes one uses, and on which note one starts the scale.  Both Stairway and Taurus use the same series of descending chromatic notes as a bass line, a nearly identical chord progression, the same opening three notes, are in the same key, use similar but not identical notes for melody lines, and are played at a nearly identical tempo (timing).  Wow, sounds bad, huh?  Had the jury heard recordings of the two songs, they would have heard that they are played on the same instrument (acoustic guitar) and have the same timbre and dynamic (loudness or softness).  

Wait again, you’re asking, the jury never heard the songs?  How could they possibly have made a decision?  This result comes from a quirk of copyright law for music, incomprehensible for most people today to understand.  The Copyright Act of 1909, while not completely predating the availability of recorded music, did come at a time when the most widely distributed form of music was sheet music people would buy, then play on actual instruments.  Thus, the only copyright available for music was for written sheet music, until the passage of the Copyright Act of 1976.  A musical piece was only “published” if the sheet music was printed and offered or sale.  Music that was merely recorded on vinyl or tape, and sold that way, was only copyrightable if written sheet music was deposited with the United States Copyright Office.  Here, one page of sheet music for Taurus was deposited with the United States Copyright Office in 1967, and therefore served as the only basis for Taurus’ copyright.  The jury compared Taurus’ sheet music to sheet music for Stairway to Heaven.

For the musically unfamiliar, the plaintiff’s argument is a bit like saying that one written work is substantially similar to another because it uses the same language, same letters, many of the same words, uses the same punctuation marks, organizes the words into sentences, and the sentences into paragraphs.  Music has a limited number of notes and scales, and certain note and chord progressions are commonly used in many, many songs.  The descending chromatic bass line in both Taurus and Stairway is one such common theme.  Courts have long rejected copyright claims based on such “similarities,” and held that ubiquitous musical phrases and scales cannot be copyrighted.  Nor can short phrases of notes, given the limited number of notes that exist.  This means that the similarities between Taurus and Stairway, taken individually, are not copyrightable.  

The primary argument of the plaintiff was that, although the individual parts of Taurus could not be copyrighted, the individual parts combined together as a whole amounted to an original, creative composition unique enough to be copyrightable.  The plaintiff requested a jury instruction to this effect and the trial judge refused to give it.  While the plaintiff asserted other alleged errors in the trial court, the failure to give the “Combination of Unprotectible Elements” jury instruction was the main issue on appeal.  The initial three-judge panel of the Ninth Circuit agreed that it was error to refuse to give the instruction.  The dissenting opinion from the En Banc panel also agreed it was error not to give the requested instruction.

The majority opinion skirted the issue.  While acknowledging “a copyright plaintiff may argue ‘infringement . . . based on original selection and arrangement of unprotected elements,’” the majority held that the plaintiff had not properly objected to the trial judge’s failure to give the requested “selection and arrangement” instruction, did not make a “selection and arrangement” argument to the jury, and it was not plain error for the trial judge not to give the requested jury instruction.  I personally find the dissent much more persuasive that plaintiff did properly object and did present his “selection and arrangement” theory to the jury.  However, as I’ll discuss in more detail below, I also believe the concurring opinion of Judge Watford to be correct, that the “selection and arrangement” of multiple musical elements in Taurus could not be found by any reasonable jury to be “substantially similar” to Stairway.

The majority opinion is noteworthy for three key holdings.  First, the opinion was particularly harsh on the plaintiff’s alleged failure preserve an objection to the trial court’s failure to give the requested “selection and arrangement” jury instruction.  Federal Rule of Civil Procedure 51(d)(1)(B) states that, to preserve on appeal an objection to the refusal to give a requested jury instruction, the instruction “must be both “properly requested . . . and . . . also properly objected [to]” and the objection must be “on the record,” “promptly after learning that the instruction or request will be . . . refused.”  Fed. R. Civ. P. 51(c)(1), (c)(2)(B).  The majority held that plaintiff’s counsel failed to make an objection on the record despite the trial court informing counsel that he had reviewed all proposed instructions and had decided which instructions “are going to be given and which aren’t.”  For practitioners, this En Banc opinion means that you must voice particular objections to the trial court’s failure to give each and every jury instruction you have requested in order to preserve those objections for appeal.  Attorneys must do so even if the trial judge makes clear he/she wishes to entertain no more oral argument.

Second, the majority rejected the “inverse ratio” theory of copyright infringement.  This theory would apply a lower level of “substantial similarity” to an allegedly infringing work depending on the amount of access the alleged infringer had to the copyrighted material, the theory being the more access an alleged infringer has, the more likely the work was copied rather than created independently.  In the Stairway case, for example, it was shown that Led Zeppelin played several concerts with Spirit also on the bill, played a cover of the Spirit song Fresh Garbage, and Jimmy Page owned a copy of the Spirit album on which Taurus appeared.  However, Jimmy Page testified that he hadn’t heard Taurus before writing Stairway.  The En Banc opinion, and the concurring and dissenting opinions, all rejected the “inverse ratio” rule and held the “substantial similarity” test is the same regardless of the alleged infringer’s access to the copyrighted material.

Third, while the majority did not expressly rule whether it was error (other than not being “plain error”) not to give plaintiff’s requested “substantial similarity” jury instruction, in a length footnote, the majority did essentially endorse the theory argued by Led Zeppelin that, for an amalgamation of otherwise common and unprotectible parts to warrant copyright protection, the infringement must be “virtually identical.”  Thus, Vanilla Ice adding a single note to the bass line in Queen/David Bowie’s song Under Pressure would still meet the “substantial similarity” test under this formulation, while the many and varied changes in the melody line used in Stairway as compared to Taurus would not.

In Stairway, the melody notes played against the descending chromatic bass line start off with the same three notes as Taurus played the same way, but then diverge notably and substantially.  Stairway’s melody line rises in pitch, then falls in pitch, while Taurus simply repeats the second and third of its three opening notes throughout the descending chromatic bass line.  If one removed the ubiquitous descending chromatic bass line from both songs, the melody notes would sound mildly similar, as the songs are in the same key (A minor), use the same chord progression, and therefore use the same limited notes, but would be recognized by anyone as clearly different melody lines.  Moreover, the key of A minor is the second most common key, to E minor, used on guitar compositions.  This is because of the way a guitar is tuned and the number of open strings useable while playing in the key of A minor.

The jury apparently recognized the dissimilarities between the two songs and found they were not “substantially similar.”  Although the jury could only “see” the dissimilarities, if you would like to “hear” examples of the same descending chromatic bass line used in a host of other songs before Taurus was written (including popular Beatles songs Something and Fixing a Hole), I highly recommend this YouTube video by Rick Beato, https://www.youtube.com/watch?v=-MBKJDmE-OQ, showing several songs earlier than Taurus that use the same descending chromatic notes, or “line cliché.”  

Hopefully, the Ninth Circuit’s En Banc opinion will dissuade copyright infringement lawsuits against musical artists based on fleeting and inconsequential similarities.  Music is and has always been created based upon inspiration from prior artists and music, with new artists building upon the works of old and creating new original music.  And also hopefully, trial courts will heed this opinion and impose the “virtually identical” standard as liberally as warranted to throw out baseless copyright infringement lawsuits before they ever reach a jury.

Author: Benjamin Pugh, Shareholder, Enterprise Counsel Group