At Lawrence G. Townsend, Intellectual Property Lawyer, in , we represent people in copyright infringement disputes involving a variety of creative works, including those involving music and sound recordings. In current copyright news, the owner of the copyright to an obscure 1960s rock song who alleges that Led Zeppelin’s “Stairway to Heaven” was copied from it has a second chance to prove his case. 

On September 28, the U.S. Court of Appeals for the 9th Circuit reversed the U.S. District Court for the Central District of California, where a jury had found no infringement. The 9th Circuit has sent the case back to the trial court for a redo because, among other things, it said the jury instructions were in error and that the jury should have been able to hear a recording of the original song, “Taurus.”

How the case got to this point 

In Skidmore v. Led Zeppelin, Michael Skidmore, the trustee of the trust owning the rights to “Taurus,” written by now deceased Randy Wolfe, sued Led Zeppelin band members and other related defendants for copyright infringement, claiming that “Stairway to Heaven” infringed on the “Taurus” copyright. 

In the 1960s, Led Zeppelin as a fledgling band was a few times the opening act for Wolfe’s band Spirit. Skidmore alleges that the opening stanzas of “Taurus” form the basis for the iconic beginning of “Stairway to Heaven” and that Led Zeppelin band members had the opportunity to hear “Taurus” at those concerts.

Questions about jury instructions  

The judge at trial instructed the jury that brief musical elements like “chromatic scales, arpeggios or short sequences of three notes” are not protected by copyright. The 9th Circuit, however, said that the proper instruction would have told the jury that while these basic elements are not protected, the creativity used to select certain combinations of musical elements and place them in a particular order and arrangement is protected by copyright. This creative arrangement of elements is the essence of an original musical work, song or tune. 

If the jury had understood that the creative arrangement of musical elements is protected, it might have found “extrinsic similarity” between the two songs. The extrinsic test requires an objective comparison between the original elements of the first song and the elements of the second to decide if they are substantially similar. 

The appellate court found that this incorrect jury instruction required reversal of the decision.   

Legal basis to play the recording of Taurus for jurors 

At trial, the court did not allow the jury to hear a recording of Taurus because the scope of the copyright was controlled by the song version deposited at the Copyright Office, which was only the sheet music, according to the 1909 Copyright Act. Because of this, the jury only heard someone play the song from the sheet music. 

The 9th Circuit agreed with this but determined that the jury should have heard the recording to prove that Led Zeppelin had “access” to “Taurus,” such as by hearing it in concert. 

The appeals court sent the case back to the trial court to retry the case using the tweaked jury instructions and allowing the jury to hear the recording as possible proof of access. Many will be watching – and listening more carefully to – the second “Stairway” trial.