By Grayson O’Saile
The latest ruling in the copyright litigation surrounding Led Zeppelin’s “Stairway to Heaven” provides a point for discussion regarding strict adherence to the text of a statute versus pragmatic, equitable fairness and plain “common sense.” Led Zeppelin, a famous British rock band (and one of the most famous bands in history), formed in 1968 and was comprised of lead singer Robert Plant, guitarist Jimmy Page, drummer John Bonham, and bassist John Paul Jones. “Stairway to Heaven,” arguably the band’s most well-known song, appeared on Led Zeppelin’s fourth album, known as Led Zeppelin IV, and was released in late 1971. “Stairway to Heaven” is a psychedelic rock masterpiece with iconic guitar parts, including an acoustic guitar intro that incorporates a descending chromatic minor chord progression in A minor. The song was written by Jimmy Page and Robert Plant.
In 2014, the estate of Randy Wolfe, the late guitarist for the band Spirit, filed suit alleging that Page had copied the guitar intro from Spirit’s song “Taurus.” The complaint alleged that since Led Zeppelin had appeared on the same bill as Spirit in the early stage of their career, they would have been aware of the song and would have copied it. Skidmore, the trustee for Randy Wolfe’s trust, does not claim that Led Zeppelin copied the entirety of “Taurus,” just that the opening notes are substantially similar enough to sustain a copyright infringement claim. “Taurus” appeared on Spirit’s 1967 self-titled debut album, and a one page transcription of the song was deposited with the United States Copyright Office in December of that same year. “Taurus” also features a guitar intro with a descending chromatic minor chord progression in A minor.
Copyright infringement requires the plaintiff to show two prongs. The plaintiff must show that (1) he or she owns a valid copyright in the property and (2) the alleged infringer copied protected aspects of the copyrighted work. The second prong contains two separate components: “copying” and “unlawful appropriation,” which are distinct concepts but are generally referred to as the need to prove “substantial similarity.” “In the absence of direct evidence of copying, which is the case here, the plaintiff ‘can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.’” Led Zeppelin filed a motion in limine to exclude sound recordings of “Taurus” and any expert testimony based on those recordings.
The district court ruled that under the 1909 Copyright Act, which is the controlling substantive law in this case, the scope of the copyright was circumscribed by the musical composition transcribed in the “Taurus” deposit copy. “Thus, only the one-page Taurus deposit copy, and not a sound recording, could be used to prove substantial similarity between Taurus and Stairway to Heaven.” Due to this ruling, the jury was not allowed to hear sound recordings of “Taurus,” nor was it allowed to hear any expert testimony based on any such recordings. Instead, during trial, Skidmore presented a “master guitarist,” Kevin Hanson, who performed the “Taurus” deposit copy for the jury “as he interpreted it.” This is despite the fact that the jury was allowed to hear a fully produced sound recording of “Stairway to Heaven.”
In light of the ruling, Skidmore creatively argued that the sound recordings of “Taurus” should be played for the jury for the purpose of proving access, rather than substantial similarity. Skidmore argued that Led Zeppelin members heard either performances or recordings of “Taurus” before creating “Stairway to Heaven,” and that if the jury was able to observe Page listening to the recordings, the jury could evaluate his demeanor with respect to access. The court held that the sound recordings were relevant to prove access, but Skidmore’s approach would be too prejudicial for the jury because it risked confusing the issue of access with substantial similarity. Thus, the court excluded the recordings under Federal Rule of Evidence 403. Instead, Skidmore’s counsel was allowed to play the recordings for Page outside the presence of the jury and then question him about the recordings in front of the jury.
At trial, the jury returned a verdict for Led Zeppelin, finding in special interrogatories that Skidmore owned the copyright to Taurus and that Led Zeppelin had access to “Taurus,” but the that the two songs were not substantially similar enough under the extrinsic test. Skidmore appealed from the judgment on a handful of legal issues, one of which is relevant for this discussion. Skidmore challenged the ruling that substantial similarity must be proven using the copyright deposit copy.
The Court of Appeals for the Ninth Circuit upheld the district court’s rulings and its entry of judgment in favor of Led Zeppelin. In holding that the Copyright Act of 1909 did not extend to sound recordings of copyrighted songs, only the sheet music deposited, the court relied on a textual argument. The court noted that the statute provided copyright protection against “’any arrangement or setting of[the musical composition]
or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.’” “Although the 1909 Act extended copyright protection against infringement beyond the mere reproduction of the sheet music,” the court reasoned, “Congress did not provide that copyrighted works could be anything other than sheet music or, for an unpublished work, the musical composition transcribed in the deposit copy.” The court further held that “[a]lthough Skidmore offers a host of reasons why adherence to the statute complicates proof in copyright cases, these arguments cannot overcome the statutory requirements.” Skidmore’s main contention was that it was impractical to compare a sound recording of the infringing work to a deposit copy of the infringed work.
While the Court of Appeals is backed by the statutory language of the Copyright Act of 1909, this mismatch of evidence is, from a practical standpoint, unfair. A rendition of a musical piece in a courtroom by a single guitarist cannot possibly capture the mood and inflection of a fully produced musical piece played through a sound recording. The subtle nuances of musical production and editing can transform a song. Furthermore, would it not seem reasonable that if Skidmore was limited to the deposited copy of “Taurus” as evidence, that Led Zeppelin should be limited to its deposited copy of “Stairway to Heaven” as its evidence. The jury should have been limited to hearing the live performances of each piece in court. Ultimately, the public hears the fully produced versions of each song. Why is the jury limited to comparing apples to oranges? A jury should be armed with as much information as possible to make a fair and rational determination of the facts. In this case, the jury was arbitrarily limited by the application of an outdated and repealed statute that could not foresee the advances in musical recording and production. From the pragmatic point of view, this seems inequitable.
for the purposes of curiosity and self-determination, are links to the
recordings of both “Stairway to Heaven” and “Taurus.”
Corbin Reiff, How Led Zeppelin Came to Be, Rolling Stone (Sept. 7, 2018), https://www.rollingstone.com/music/music-features/how-led-zeppelin-formed-718697/.
 Skidmore v. Led Zeppelin, No. 16-56057, 2020 WL 1128808, at *3 (9th Cir. Mar. 9, 2020).
 Kory Grow, Led Zeppelin Win in ‘Stairway to Heaven’ Trial, Rolling Stone, (June 23, 2016), https://www.rollingstone.com/music/music-news/led-zeppelin-win-in-stairway-to-heaven-trial-70565/.
 Skidmore, 2020 WL 1128808, at *3.
 Id. at *2.
 Id. at *3.
 Id. at *8–9.
 Id. at *8.
 Id. at *9.
 Id. (quotingRentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
 Id. at *4.
 Id. at *8.
 Id. at *9.
 Id. at *5.
 Id. at *2.
 Id. at *6.
 Id. (quoting 1909 Act, ch. 320, § 1(e), 35 Stat. 1075, 1075 (1909) (repealed 1976).
 Id. at *8.