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Tough questions for the plaintiffs in latest Stairway To Heaven song-theft court hearing

By Chris Cooke | Published on Wednesday 25 September 2019

The big ‘Stairway To Heaven’ copyright dispute was back in court on Monday, and one copyright technicality in particular was in the spotlight: the rule that only the specific version of a song as logged with the US Copyright Office enjoys copyright protection. In the back and forth on that one issue, the judges gave the plaintiffs in the case quite a bit of grief.

Led Zeppelin, as you may remember, were sued by the estate of songwriter Randy Wolfe, aka Randy California. Its lawsuit alleged that ‘Stairway To Heaven’ ripped off Wolfe’s song ‘Taurus’. But the band successfully defeated the litigation in 2016 when a jury concluded that the two songs were not sufficiently similar to constitute copyright infringement.

The Wolfe estate then appealed that ruling in early 2017, arguing that the jury had been badly briefed by the judge, in particular regarding some of the complexities of American copyright law that were relevant to the case. The Ninth Circuit appeals court ultimately concurred with the estate, overturning the original judgement and ordering a retrial.

Though, before that retrial could happen in the court that originally heard the case, the Ninth Circuit announced it would consider the matter anew. This time en banc, so that more judges would be involved in the court’s deliberations. And that new consideration, en banc, began on Monday, with lawyers for both sides being questioned by judges.

There are various technicalities at play in this case, but it was the ‘only-protected-as-filed’ principle of American copyright law that seemed to get the most attention at this week’s hearing. This rule is most limiting on pre-1978 songs, like ‘Taurus’, because in that era when songs were registered only the sheet music could be filed.

Therefore, technically, only the song as represented in the sheet music enjoys copyright protection. Any elements that appear in the most famous recording of the work, but not contained in the sheet music, are therefore not protected by the song copyright.

Which is annoying if you think your pre-1978 song has been ripped off by another song, but the ripped off elements are mainly those that appeared in your original recording, not the sheet music that accompanied that recording. Which is basically what happened in this case (and also the ‘Blurred Lines’ song theft case – as we discuss in this Setlist special here).

The lawyer for the Wolfe estate, Francis Malofiy, has been busy arguing that this is a stupid principle, not least because many famous musicians – Led Zep’s Jimmy Page among them – can’t read or write music, and therefore their songwriting is more directly captured in the studio. A third party would then document the resulting song in sheet music form.

According to the Associated Press, in court on Monday he said of this reliance on the registered sheet music: “Why are we looking at this artificial analysis that never happened in the real world? It’s wrong, it’s artificial, it’s imaginary”.

However, in a recent amicus brief filed with the court, both the US Copyright Office and the US Department Of Justice stated that the only-protected-as-filed principle definitely is part of the country’s copyright regime and should therefore be applied in this case. And on Monday, it felt like the Ninth Circuit judges were inclined to agree.

Another technicality in the case – which was where the initial Ninth Circuit hearing decided that the judge in the original case had badly advised jurors – relates to when the common elements between two songs are frequently used musical units.

Those musical units in themselves cannot be protected by copyright, but the way they are selected and arranged might be. And this is another copyright complexity that needs to be navigated to decide whether ‘Stairway’ infringes ‘Taurus’.

Although, one of the judges hearing the case on Monday – Andrew D Hurwitz – was pretty adamant that, unless the most famous recordings of ‘Stairway’ and ‘Taurus’ can also be considered, there simply isn’t enough similarity between the sheet music representations of the two songs to bother debating the ‘selection and arrangement’ point.

“You’ve got to get your sound recording in to win, don’t you?” he asked Malofiy. “You lose the case unless you do. A hundred times out of a hundred”.

We now await to see how this take two Ninth Circuit hearing rules. But you sense this larger panel of judges is more likely to uphold the lower court ruling.