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It makes us wonder, will "Stairway to Heaven" lead to a new 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.

Since 2014, Led Zeppelin and Michael Skidmore, trustee of the trust that owns rights in a song by a deceased musician, have been fighting in court about whether Zepp's iconic "Stairway to Heaven" infringes on the copyright for "Taurus." As we described in this space last year, the deceased writer of "Taurus" was Randy Wolfe, member of the 1960's band Spirit, which enlisted Led Zeppelin as an opening act before Zeppelin had made it big.

Skidmore alleges that Led Zeppelin's band members (specifically Jimmy Page and Robert Plant) had the opportunity to hear "Taurus" during those joint concerts and that the opening riffs of both songs are substantially similar enough to show that Zeppelin infringed on Spirit's copyright.

At the 2016 trial in California federal court, the jury found for Led Zeppelin. On appeal to a three-judge panel of the 9th Circuit Court of Appeals, the court in 2018 ordered a new trial, disagreeing with the jury's instructions at the first trial.

Controversy over jury instructions

Specifically, the trial court had told the jury that basic building blocks of music such as three-note sequences and certain scales and arpeggios are not subject to copyright. The 9th Circuit disagreed, holding that the correct jury instruction would say that when the basic elements of music are combined in a creative way, the resulting original song is protectable in copyright.

The second major issue is whether the jury should have been able to hear the actual recordings of the two songs for comparison. "Taurus" falls under the 1909 Copyright Act, which only protects the paper music on file with the Copyright Office, but not the recordings. The trial court only allowed the paper music of the songs as evidence and not the recordings, although a guitarist played the two songs from the sheet music for the jury.

The three-judge appeals panel found that the jury should have heard the comparative recordings, but for a different reason: access. The jury could have heard the Spirit song that Zeppelin bandmembers had access to in the past because they heard it at their joint concerts.

A third bite of the apple

Instead of proceeding with a second trial, Led Zeppelin requested rehearing before the full 9th Circuit of 11 judges, which was granted and held Sept. 23. Many are speculating on whether the entire court will agree with the smaller panel and send the case back for a second trial.

According to the San Francisco Chronicle, Zeppelin's position was supported by the U.S. Department of Justice as well as by members of the music industry who are reportedly concerned about how far into basic musical elements copyright could reach. Zeppelin's lawyer argued that the disputed parts of "Taurus" are not protected because they are just common elements of music.

Skidmore's attorney reportedly argued fiercely for having the recordings played for the jury at a second trial. In an interesting point, The Associated Press wrote that he said that because Jimmy Page, who was responsible for the disputed riff, does not read music, it would have been his hearing of the song on which he would have based his allegedly copied music. He also argued that, "I don't think it's the sound recording that's copyrighted, I think it's the composition embodied in the sound recording."

We will report back on the outcome of this rehearing. It's making us wonder.

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