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Another step in the ‘Stairway to Heaven’ copyright trial

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

In October, we told readers about the high-profile copyright litigation in which the trustee of a trust containing a deceased musician’s copyright interests had sued the iconic band Led Zeppelin. Trustee Michael Skidmore alleged in U.S. District Court in California that the world-famous opening guitar solo of “Stairway to Heaven” was lifted from an obscure song called “Taurus,” written by Randy Wolfe of the band Spirit.

The copyright dispute

Zeppelin had opened for Spirit in the 1960’s at which time Skidmore alleges Led Zeppelin members would have heard “Taurus” before “Stairway” was written. The district court jury said Led Zeppelin had not infringed on “Taurus.”

On Sept. 28, the 9th Circuit Court of Appeals reversed the district court, holding:

  • The trial court’s jury instructions were incorrect when they said that basic, brief musical elements are not copyrightable. Instead, the judge should have told the jury that the creative arrangement of those elements is protectable in copyright and could form the basis for “extrinsic similarity” of the songs.
  • The jury should have been able to hear a recording of “Taurus” to show that Zeppelin had “access” to it, despite that copyright law at the time was based on paper sheet music filings. Hollywood Reporter also reports that the court said the jury should have been able to watch Jimmy Page’s reaction as he listened to “Taurus.”

The three-judge panel ordered the case sent back for a new trial.

Not so fast

On June 10, the Ninth Circuit ordered that instead of going back for a new trial, an en banc panel of 11 Ninth Circuit nonrecused judges will rehear the dispute. The court also ordered that the Sept. 28 three-judge decision is not precedential and is without legal authority within the Ninth Circuit. The new order is available on Westlaw at 925 F.3d 999.

According to Fox News, the Ninth Circuit has scheduled the en banc argument in September.



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