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 The court also ordered that the Sept. 28 three-judge decision is not precedential and is without legal authority within the Ninth Circuit.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.