PHOSITA

Authored by Evan Talley, June 28, 2016 at 11:13 am
IP LAWSUITS

Last Thursday, June 21, 2016, an eight-person jury in the United States District Court for the Central District of California unanimously determined that Led Zeppelin’s “Stairway to Heaven” does not infringe a copyright owned by psychedelic-rock band Spirit. The plaintiff, Michael Skidmore, as the trustee of the Estate of Randy Craig Wolfe, a former guitarist for the band Spirit known as Randy California, sought damages in excess of $40 million. Skidmore contended that, while touring with Spirit in the late 1960s, Led Zeppelin’s guitarist Jimmy Page became familiar with Spirit’s catalog, specifically a song entitled “Taurus.” The plaintiff alleged that, a year after touring with Spirit, Page penned Stairway to Heaven after having access to Taurus and that the notes, melody, chord progression, structure, tempo, instrumentation, and feel of Stairway are “strikingly similar” to Taurus.

Throughout the case, Led Zeppelin has argued that any similarity between the two songs stems from a common “descending chromatic scale of pitches” known for years before Taurus. In fact, the defense stated in an earlier court filing that Page heard the same musical structure at least as early as 1964 in the Song “Chim Chim Cher-ee” from Mary Poppins.

The case was originally filed in the Eastern District of Pennsylvania but was subsequently transferred to the Central District of California. In April, as to defendants Page and lead singer Robert Plant, Judge Gary Klausner denied the defendants’ Motion for Summary Judgment on the copyright infringement claim, paving the way for trial.

Trial commenced June 14th. The plaintiff called Page to the stand during its case in chief. Page testified that he hadn’t heard Taurus until a few years ago when his son-in-law played the song for him after rumors of a possible copyright infringement action surfaced. Page also testified that his personal record collection, which consists of more than 10,000 albums, includes several Spirit records, but that he wasn’t familiar with the song Taurus until a couple years ago. Page did admit, however, that the band covered another Spirit song – “Fresh-Garbage.” The plaintiff rested after four days.

Before presenting their defense, the defendants moved for Judgment as a Matter of Law on the basis that the plaintiff failed to carry its burden on certain necessary elements of its claims. Namely, the defendants asserted that the plaintiff failed to submit the registration of the 1967 Taurus musical composition; that Skidmore does not own the musical composition copyright; that the plaintiff failed to present non-speculative evidence of Led Zeppelin’s access to the copyrighted material; and that the plaintiff failed to submit evidence of striking or substantial similarity under the extrinsic test. The defendants’ motion was pending at the time the jury reached its verdict.

The same day as they filed their Motion for JMOL, the defendants also lodged objections to the conduct of the plaintiff’s attorney during the course of trial. Specifically, the defendants objected to the plaintiff’s counsel’s inclusion of false and misleading questions; seeking to elicit testimony that violated the Court’s rulings on motions in limine; presenting to the jury an altered photograph to create the false impression that Robert Plant was talking to one of the plaintiff’s witnesses; and repeatedly making statements to the media that were contrary to the Court’s rulings, were false, or would otherwise prejudice the trial. Not necessarily unethical but unconventional nonetheless, the banner image of this post is taken from the cover page of the plaintiff’s original Complaint. The font used by the attorney is similar, some might say strikingly so, to the font used by Led Zeppelin on many of its album covers.

The Court did not address the defendants’ objections regarding the attorney’s behavior, but it’s worth noting that the same attorney has had similar accusations levied against him in other cases. The attorney has been accused of soliciting an affidavit from a witness who didn’t understand the attorney’s role in the case. The Judge in that case called the attorney “abusive” to opposing lawyers and that his conduct was a function of “the grotesquely exaggerated zeal common to less experienced trial lawyers.” In another case, the attorney was accused of altering a document submitted to the Court.

The defendants presented their case in just one day. After closing arguments, the Court instructed the jury. Regarding the scope of Spirit’s copyright protection, Judge Klausner instructed the jury that Taurus’ copyright extended only to the written musical composition in the deposit copy in the U.S. Copyright Office, not any sound recording of Taurus. After the verdict was announced, the plaintiff stated that it took particular objection to the jury never having heard recordings of the respective songs.

The Court further instructed the jury that Stairway must have both substantial extrinsic similarity and substantial intrinsic similarity to Spirit’s copyrighted work. Extrinsic similarity is an objective test and requires the jury to determine whether the two works are similar in original expression by breaking the down two works into their specific musical elements. The jury was instructed to disregard all elements that are not original to Taurus, then decide whether there are any remaining musical elements that are original to Taurus and also appear in Stairway, and if so, whether they are substantial or insubstantial similarities. If the jury finds that the plaintiff did not prove extrinsic similarity, the Court instructed that there is no need to answer the question of intrinsic similarity, i.e., their verdict must be for the defendants.

The jury found that Spirit owned a valid copyright in the musical composition Taurus and that both Page and Plant had access to the musical composition before Stairway was created. However, the jury found that the original elements of the musical composition Taurus are not extrinsically substantially similar to Stairway. As a result, the Court entered a judgment on the verdict in favor of the defendants.

Counsel for the plaintiff indicated that his clients are contemplating appeal.