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Old 06-23-2016, 06:58 PM   #1
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Music Update: Appeals Court Revives Copyright Case over Led Zeppelin's 'Stairway to Heaven'

Led Zeppelin Wins 'Stairway to Heaven' Plagiarism Trial
by Will Robinson

The song remains the same: Led Zeppelin are in the clear after a federal jury decided the band did not plagiarize their signature track, 1971’s 'Stairway to Heaven'. The panel announced their unanimous decision on Thursday in a Los Angeles federal court room.

The English rockers were accused of infringing on the copyright of the instrumental track 'Taurus' by the American band Spirit. Michael Skidmore, a trustee of the estate of Spirit guitarist Randy Wolfe, was the plaintiff and accused Zeppelin of lifting 'Stairway’s' acoustic guitar-laden introduction from 'Taurus' and sought upwards of $40 million in damages, as well as a songwriting credit for Wolfe.

But the eight-person jury ruled that even though Plant had access to 'Taurus' and that Skidmore and Spirit’s estate had copyright to 'Taurus', the “original elements of Spirit’s song are not extrinsically similar” to
'Stairway to Heaven'.

Zeppelin guitarist Jimmy Page and singer Robert Plant were in the courtroom when the verdict was handed down, a day after closing arguments were made Wednesday morning. They both smiled and hugged their team after the court adjourned.

We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years. We appreciate our fans’ support, and look forward to putting this legal matter behind us,” Page and Plant said in a joint statement after the verdict was announced.

Warner Music Group made a similar statement and said:

A Warner Music Group, supporting our artists and protecting their creative freedom is paramount. We are pleased that the jury found in favor of Led Zeppelin, re-affirming the true origins of ‘Stairway to Heaven’. Led Zeppelin is one of the greatest bands in history, and Jimmy Page and Robert Plant are peerless songwriters who created many of rock’s most influential and enduring songs.

But plaintiff attorney Francis Malofiy told reporters at the courthouse, “They won on a technicality. We proved access. We proved they had access to the music, but the jury never heard the music.” (A studio recording of Spirit’s 'Taurus' wasn’t played during the hearing.)

So the jury’s sitting there with basically blinders on without ever having the opportunity of hearing the evidence at issue.

Skidmore later reiterated this point at a presser and said, “If the jury had heard ‘Taurus,’ the sound recording, we would have won the case. They were limited to looking at a piece of paper.

He continued, “We got the access, we got the trust’s okay, we weren’t allowed to tell them the money [awarded from the suit] goes to charity. It was all skewed in Led Zeppelin’s favor. All I can say is money talks louder than common sense. We did the right thing. We tried to carry on Randy’s legacy … We had a small team versus multinational corporations. I think we did a really good job.

Malofiy agreed: “We’re fighting with a foot stapled to the ground, and an arm tied behind our back, and it wasn’t a fair fight.” When asked if they would appeal, he said, “There’s obviously issues that can be appealed.

During the trial, the plaintiff sought to prove that Led Zeppelin had access to 'Taurus' and that the two works are substantially similar.

Both sides explored the history of 'Stairway to Heaven', with the plaintiff pointing to instances when members of Zeppelin allegedly heard Spirit perform 'Taurus' (which the defense refuted), and the defense arguing that Zeppelin created 'Stairway' alone, even playing tapes of early versions of the song.

Music experts also testified about the similarities between the songs, pointing out that 'Taurus' and the 'Stairway' intro both use a chromatic descending arpeggiated scale that skips the E note — a common musical element that is in the public domain and has been used by the likes of The Beatles and Mary Poppins, the defense argued.

Last edited by JamesG; 09-28-2018 at 02:44 PM.
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Old 06-24-2016, 05:53 PM   #2
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Led Zeppelin has been plagued by accusations of plagiarism for decades. (Some of the claims seem to have had some merit.)
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Old 06-29-2016, 06:54 AM   #3
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congratulations to Led Zeppelin on that
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Old 09-28-2018, 02:49 PM   #4
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Appeals Court Revives Copyright Case over Led Zeppelin's 'Stairway to Heaven'
by Eriq Gardner
Sept. 28, 2018

A copyright battle over Led Zeppelin's iconic song 'Stairway to Heaven' is back on after the Ninth Circuit Court of Appeals on Friday partially vacated the trial court's judgment in favor of the band and remanded the case for a new trial.

The lawsuit was brought by Michael Skidmore, the Trustee for deceased songwriter Randy Wolfe (best known as Randy California), who composed Spirit's 'Taurus' in the late 1960s. The complaint — 43 years in the making after much discussion in the musical community over whether 'Stairway to Heaven' plagiarized 'Taurus' -- explicitly demanded a rewriting of rock history.

In June 2016, Led Zeppelin prevailed at trial after the jury heard Led Zeppelin members Jimmy Page and Robert Plant testify as well as a Spirit bandmember, musicologists and other witnesses about the similarity between the songs.

The jury didn't hear the recording of 'Taurus' because the song was copyrighted before sound recordings were covered under federal law.

In today's opinion, a panel of appellate justices holds that the jury was improperly instructed about unprotectable music elements and improperly instructed on originality.

Although the panel confirms that the scope of protection for an unpublished musical work under the old copyright law is defined by what was deposited with the Copyright Office and that the playing of 'Taurus' couldn't be used to prove substantial similarity, the 9th Circuit determines that the recording should nevertheless have been played for the purpose of demonstrating Led Zeppelin's access to the song.

Many legal observers expected a legal battle over 'Blurred Lines' between the heirs of Marvin Gaye on one side and Robin Thicke and Pharrell Williams on the other to provide guidance in song theft cases. Earlier this year, the 9th Circuit upheld the 'Blurred Lines' verdict but stopped short of delivering such expected guidance thanks to a failure by Williams' attorney to properly preserve certain issues for appeal.

The dispute over 'Stairway to Heaven' has now stepped in to provide useful instruction in copyright trials examining songcraft.

Circuit Judge Richard Paez begins his majority opinion by going through the history of the case, the allegations made, and reviewing standards in copyright cases — namely, that plaintiffs must show a valid copyright and that defendants copied protected aspects of expression.

The judge also notes that independent creation is a complete defense against a claim of copyright infringement. Paez continues by saying that where there is no direct evidence of copying, a plaintiff can attempt to prove it circumstantially by showing that the defendant had access to a work and that both works share similarities probative of copying. Perhaps most controversially, Paez adopts what's known as the inverse ratio rule: When a high degree of access is shown, a lower amount of similarity is needed to prove copying.

On appeal, Skidmore first argued that the trial judge had failed to give an instruction that selection and arrangement of otherwise unprotectable musical elements are protectable.

Paez expresses concern that the extrinsic test — an examination of so-called objective factors of similarity — isn't properly being administered and ultimately agrees with Skidmore on this point. He writes, "The district court’s failure to so instruct the jury was especially problematic in this case, because Skidmore’s expert, Dr. Stewart, testified that there was extrinsic substantial similarity based on the combination of five elements—some of which were protectable and some of which were in the public domain."

Unprotected elements of a song may include the notes or scale of a song, but the arrangement is obviously key.

As for originality, the jury instruction stated that copyright does not protect chromatic scales, arpeggios or short sequences of three notes.

Skidmore argued, and Paez again agrees, this was in error.

"There is a low bar for originality in copyright," he writes. "Copyright extends to parts of a work created (1) independently, i.e., not copied from another’s work and (2) which contain minimal creativity. Most basic musical elements are not copyrightable. In Swirsky, however, we recognized that while 'a single musical note would be too small a unit to attract copyright protection . . . an arrangement of a limited number of notes can garner copyright protection.'

Paez sums it up by concluding that these jury instructions were erroneous as the jury was told that public domain elements are not copyrightable "even if they are modified in an original manner or included as part of a selection and arrangement. We further conclude that these instructions were prejudicial as they undermined the heart of Skidmore’s argument that 'Taurus' and 'Stairway to Heaven' were extrinsically substantially similar. Because the district court erred both in the formulation of the originality jury instructions and in withholding a selection and arrangement instruction, we vacate the judgment and remand for a new trial."

The appellate decision continues by noting that the jury ended its deliberations after deciding that 'Taurus' and 'Stairway to Heaven' were not substantially similar under the extrinsic test. Thus, the jury never got to the question of whether copying had occurred. As such, the judge finds the absence of a jury instruction about the inverse ratio rule was irrelevant and harmless.

"Because we are remanding for a new trial, however, we note that in a case like this one where copying is in question and there is substantial evidence of access, an inverse ratio rule jury instruction may be appropriate," he writes.

"Here, there was substantial evidence of access, and indeed, the jury found that both James Page and Robert Plant had access to 'Taurus.' On remand, the district court should reconsider whether an inverse ratio rule instruction is warranted unless it determines, as a matter of law, that Skidmore’s 'evidence as to proof of access is insufficient to trigger the inverse ratio rule.'"

As part of what will now take place at the trial court upon remand, the appeals court seems to think a playing of the sound recording is in order. Again, while the sound recording can't be protected under federal copyright law, that doesn't mean it's necessarily off limits for all aspects of the adjudication.

"Skidmore argues that by not allowing the jury to observe Page listening to the recordings of 'Taurus,' the effect of the court’s ruling was to decrease the probative value of Skidmore’s questioning of Page," states the opinion.

"Although the jury could still draw conclusions and inferences from Page’s demeanor during his testimony, allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions. Limiting the probative value of observation was not proper here, as the risk of unfair prejudice or jury confusion was relatively small and could have been reduced further with a proper admonition."
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Old 10-31-2018, 11:03 AM   #5
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"Stairway" is one song I never tire of listening to.
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