By Mary F. Ognibene, McConville, Considine, Cooman & Morin, P.C.
Randy Wolfe of the band Spirit wrote the group’s song “Taurus,” which opens sounding a lot like Led Zeppelin’s “Stairway to Heaven,” and was released in 1968 – – the same year Zeppelin first crossed paths with Spirit and three years *before* “Stairway’s” 1971 release. Given the timeframe involved, the bands’ intersection on tour over the next two years, and what many hear as a striking similarity between the songs, Spirit’s copyright infringement case against Zeppelin might have seemed an easy win. So, how was it lost?
Francis Malofiy, famously colorful lead counsel for plaintiff Michael Skidmore, who came to control Wolfe’s trust after Wolfe’s mother left it to Skidmore, and the primary lawyer tasked with facing down Led Zeppelin and the potent legal fire power available (read: affordable) to defendants like Page, Robert Plant, and Warner Music Group Corp., had his work cut out for him. The Copyright Act of 1909 prohibited playing Spirit’s recording of “Taurus” for the court. As the dispute centered on songwriting, rather than on the song’s recording, “Taurus” could only be played by music experts from the one-page hand-written sheet music version that was used to register its copyright. As a result, the jury heard the fully produced album recording of “Stairway” versus a flavorless rendition of “Taurus,” played from the 1968 sheet music by music academics in a court room. Many jury members could probably conjure “Stairway” without hearing any recording at all, while likely few had ever even heard of “Taurus,” let alone knew what the Spirit recording sounded like. Spirit’s “Taurus” was the song that needed to be played for proper comparison, and it’s the song that was barred.
Another blow to Malofiy’s case came when Zeppelin’s rather impressive history of paying settlements and changing writing credits in response to infringement claims on several other songs was deemed inadmissible. The jury never saw this:
To determine infringement, courts look at copying and substantial similarity. Copying can be proven by direct evidence, such as an admission, or by showing access and similarity. Substantial similarity is determined by the trier of fact and must show similarity sufficient to constitute improper appropriation. Zeppelin’s lawyers argued that any similarity between the songs was down to a centuries-old “descending chromatic bass line” too ubiquitous to qualify for protection.
That the case went to trial at all was a fluke. Both songs were released over 40 years ago; the statute of limitations had long expired. Malofiy’s plan to sue came to light in May of 2014. The then-applicable three-year statute of limitations was an obvious – and major – hurdle. But days later, the U.S. Supreme Court handed down a decision on a case involving the film Raging Bull, holding that there is no expiration date for seeking damages on copyright claims, only that any back royalties determined to be due are limited to earnings from the previous three years. Two weeks later, Malofiy filed suit.
The Led Zeppelin case is one in a broader context of recent decisions that are raising new questions about songwriting and testing the limits of copyright. Last year, a federal jury found that Robin Thicke and Pharrell Williams copied Marvin Gaye’s “Got To Give It Up” with their 2013 hit “Blurred Lines.” Thicke and Williams brought a pre-emptive case in 2013, seeking declaratory relief that Blurred Lines did not infringe, but the bold move backfired when, after the Gaye family counterclaimed, summary judgment was denied and the case proceeded. In an unprecedented verdict, the federal jury found that the plaintiffs had, in fact, infringed, ordering them to pay over $7 million in damages (later reduced to over $5 million). The case opened new doors to sue not over a song as it was written but over the musical structure of its “feel” or “groove” – in other words, how the listener hears the music, claiming those elements as quantifiable and proprietary and making the ear the final judge of inspiration vs. exploitation.
The ongoing effect of these recent decisions continues to unfold. While Zeppelin won the copyright case, earlier this month it lost its battle to recoup nearly $800,000 in legal fees based on the court’s determination that the original lawsuit was not frivolous. The danger of a win for the plaintiff on this “non-frivolous” case could have been significant. Published estimates put “Stairway’s” total earnings at $562 million. Averaged over 40+ years, just three years’ worth of the song’s approximate $12 million per year profits would have been a windfall, and future “Stairway” earnings would have been up for grabs.
The landscape seems to be pointing to expanded opportunities for artists to protect against unfair use of not only written but, as the Williams/Thicke case indicates, sonic intellectual property. On the other hand, the increased scrutiny has raised concerns of a “chilling” effect on creativity, especially in the recent collaborative atmosphere of pop music writing.