The copyright dispute between Skidmore and Led Zeppelin has now reached a conclusion after the US Supreme Court declined to hear the claimant’s appeal on whether Led Zeppelin’s song Stairway to Heaven infringed a song composed by Randy Wolfe in the 1960s. It brings an end to a six year legal battle that was revived on appeal in 2018 and which has set down binding precedents for US Copyright law going forward.

BACKGROUND

Led Zeppelin, formed in 1968 and widely regarded as one of the greatest rock bands of all time, was sued in 2014 for copyright infringement of the song Taurus by the band Spirit which, it was alleged, was copied by Led Zeppelin in their song Stairway to Heaven. Michael Skidmore brought the claim on behalf of Randy Wolfe, as trustee of his estate. Randy Wolfe, who was professionally known as Randy California, wrote the song Taurus in 1966 or 1967 as guitarist in the band Spirit. Wolfe had a songwriter’s and composer’s contract with Hollenback Music Co, who, in turn, registered the song, after it had been transcribed onto one sheet of sheet music, with the US Copyright Office.

Taken from page 10 of the judgment

Stairway to Heaven was released in 1971 and remains a huge commercial success worldwide. Led Zeppelin, before writing and releasing the song, had actually crossed paths with Spirit on numerous occasions, actually playing at the same venue at least three times in the late 1960s/early 1970s. Led Zeppelin also did a cover of Spirit’s song Fresh Garbage. However, at trial, it was established that there was no actual direct evidence of Led Zeppelin having heard the song Taurus or of the band touring together.

THE LAW

The applicable law in this case was the 1909 Copyright Act. This Act was actually repealed by the 1976 Copyright Act but still remains in force for works created before 1978. The inapplicability of the 1976 Act was one of the most contentious points throughout this case as the 1909 Act does not afford protection for sound recordings.

Skidmore sought to enforce the 1976 Act which would afford the audio recording of the song Taurus to enjoy copyright protection.  In fact, it was only the one page of sheet music, the musical composition, that was applicable to the proceedings. This meant that the jury in the original trial were not allowed to hear comparisons of the two songs. You can hear a comparison of the two songs here.

Skidmore claimed that the opening notes of Stairway to Heaven are substantially similar to the first eight stanzas of the Taurus composition.

US Copyright law requires that, to establish copyright infringement, the works in question be substantially similar, constituting an unlawful appropriation.

In the original trial, the jury found that Stairway to Heaven was not substantially similar under the ‘extrinsic test’ (one of the two tests that need to be satisfied to rule a work substantially similar, the other being the ‘intrinsic test’) to Taurus and therefore was not guilty of copyright infringement.

The Appeal was revived in 2018 and was heard by the 9th Circuit Appeal court in San Francisco in September 2019. The appeal centered on the applicability of the 1976 act and the admissibility of the audio recording as being afforded copyright protection and played in front of a jury.

Skidmore also appealed on the grounds of wrong jury instructions, in particular, the “inverse ratio rule”. This rule applies in copyright infringement whereby the greater the evidence of access (to the copyrighted work) the less similar the two works need to be. It had already been established that Led Zeppelin had access to the band Spirit although not concretely to Taurus.

The court passed judgment down on 9 March 2020 and dismissed the appeal.  The judges, who were sitting en banc, delivered a near unanimous decision, stating that the 1976 Act did not apply and that the issue of the “inverse ratio rule” did not apply given that it was historically a very inconsistently used rule. The Judges also rejected Skidmore’s argument that the jury should not have been given the instruction that copyright does not protect common musical elements such as arpeggios and chromatic scales, ruling that this was the correct course of action and represented US copyright law accurately.

Skidmore appealed the result to the US Supreme Court, however, the court, on in October 2020, declined to hear it, meaning that the case has run its course.

NEXT STEPS

The Supreme Court’s ruling brings an end to a case that has garnered international attention, including on the interpretation of the law, the scope of the 1976 and 1909 Acts now and the interplay between them, as well as the interpretation of access and how pivotal (or not as the case may be) this point can be to a case.

The case, now that it has come to its conclusion, sets down precedents through the 9th Circuit’s commentary on the lack of protection afforded to common musical elements such as arpeggios as well as the weakening of the ‘access’ argument in modern copyright law, whereby it was noted that this concept was being increasingly weakened as a line of argument given the digital nature of music nowadays.

Furthermore, the “inverse ratio rule” was also abrogated from by the 9th Circuit, so this precedent was overruled due to the inconsistency of how it was applied by the courts.