In a highly anticipated decision, the United States Court of Appeals for the Ninth Circuit, sitting en banc, reversed a prior panel opinion (Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018)) that had held that a new trial was required in a high-profile copyright case involving “Stairway to Heaven,” one of the most famous rock songs in history. The full Ninth Circuit now instead upheld the 2016 jury verdict in favor of Led Zeppelin, and against the heir of Randy Wolfe, the songwriter of a 1967 composition called “Taurus.” Skidmore v. Led Zeppelin, No. 16-56057 (9th Cir. Mar. 9, 2020) (en banc). Among other aspects of the decision, the Ninth Circuit determined that the decision by the district court judge to withhold from the jury the original “Taurus” sound recording at trial was not erroneous. Further, the Ninth Circuit elected to expressly repudiate the controversial “inverse ratio rule,” under which courts in the Ninth Circuit had set a lower bar for plaintiffs to prove substantial similarity where a higher level of access to a work could be shown. The decision is likely to provide a template for future music copyright cases and may find its way to the Supreme Court.
Randy Wolfe wrote the instrumental for the song “Taurus” in 1966. A year later, Wolfe’s band, Spirit, released its first eponymous album (“EP”), which included “Taurus.” Wolfe also entered into an exclusive songwriter and composer agreement and registered the copyright in the unpublished musical composition of “Taurus.”
Led Zeppelin, founded 1968, consisted of members Robert Plant, Jimmy Page, John Jones, and John Bonham. Led Zeppelin released their fourth studio album in 1971 containing the iconic song “Stairway to Heaven.”
Wolfe died in 1997, never bringing forth claims of infringement related to “Stairway to Heaven” during his lifetime. Similarly, Wolfe’s mother and successor in interest never pursued a claim either. Michael Skidmore (“Skidmore”), the plaintiff, in 2006 became co-trustee of the trust established to hold Wolfe’s copyrights. In 2015, Skidmore filed suit against all four Led Zeppelin members and their publishers and record labels. Skidmore’s claim alleged direct, contributory, and vicarious copyright infringement as well as a novel “claim” for right of attribution/equitable relief based on a “falsification of rock n roll history.” Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581, 589–90 (E.D. Pa. 2015).
At its core, Skidmore’s claim is that the opening bars of “Stairway to Heaven” copy those in “Taurus.” Led Zeppelin disputed access, ownership, and substantial similarity, while also alleging affirmative defenses of independent creation, unclean hands, and laches. After a five-day trial, a jury delivered a verdict for the defendants. The jury found that while Skidmore demonstrated ownership of the copyright in the “Taurus” composition and that there was some level of access, there was no substantial similarity between the two songs.
Skidmore timely appealed the judgment, challenging the district court’s rulings that (1) substantial similarity must be proven by reference to the copyright deposit copy of the plaintiff’s work, and (2) sound recordings could not be played for the jury to prove access, along with various jury instructions related to plaintiff’s infringement claim. A divided panel of the Ninth Circuit vacated the jury verdict in part and remanded for a new trial. That panel held that while the scope of protection for an unpublished musical work under the Copyright Act of 1909 is defined by what was deposited with the Copyright Office, it was error to withhold the Spirit recording of “Taurus” from the jury because it could have been used by the plaintiff to demonstrate Led Zeppelin’s access to the song. The panel further held that the jury was improperly instructed about unprotectable music elements and originality.
The Ninth Circuit Court of Appeals granted rehearing en banc. Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018), reh’g en banc granted, 925 F.3d 999 (2019).
Infringement and Substantial Similarity
The elements of copyright infringement are ownership of a valid copyright and unlawful appropriation. (Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116–17 (9th Cir. 2018). The first prong, ownership of the copyright in the “Taurus” composition, was not at issue in the Skidmore appeal. Absent direct evidence of copying, the second prong is typically established by showing (1) access by the defendant to plaintiff’s work; and (2) substantial similarity.
Taking the second prong first, a key question for the court was “substantially similar to what?” Under the 1909 Copyright Act, which applied to the plaintiff’s asserted unpublished musical composition at issue, submission of a deposit copy to the United States Copyright Office was required for registration. (Notably, sound recordings were not allowed copyright protection under the 1909 Copyright Act.) Since “Taurus” was submitted for registration with the Copyright Office in 1967, the deposit copy embodied the work in which the plaintiff held a copyright interest. Other works and versions, including the Spirit sound recording of the song, were not relevant to Skidmore’s claim. Thus, Skidmore had to rely solely on the deposit copy to prove claims of substantial similarity of Led Zeppelin’s “Stairway to Heaven” to “Taurus.”
Access was contested by the parties at trial, and the plaintiff ultimately succeeded in establishing access to “Taurus” by members of Led Zeppelin. Notably, Jimmy Page admitted that a recording of “Taurus” by Spirit was in his record collection, although he could not recall the song. Additionally, Led Zeppelin had performed a few times at the same venue as Spirit before “Stairway to Heaven” was written and recorded.
Skidmore attempted to use the access issue to introduce the Spirit sound recording of “Taurus” to the jury. Because the work on which he was suing was the musical composition and not the sound recording, the relevant comparison for the jury was the “Taurus” sheet music to the “Stairway to Heaven” recording, not the two sound recordings. Therefore, the court would not allow Skidmore to play both sound recordings for purposes of proving substantial similarity. However, at trial, Skidmore argued that the jury should be able to see Jimmy Page listen to the “Taurus” recording and analyze his reactions on the stand. The court rejected the argument and held that any probative value of such a reaction would be outweighed by the confusion that would be introduced with respect to substantial similarity. The court allowed Skidmore to play “Taurus” for Page only outside of the jury’s presence.
On appeal, a panel of the Ninth Circuit held that this ruling fell well within the discretion of the district court.
Inverse ratio rule
Significantly, the en banc court took the occasion of the Skidmore case to abrogate the controversial “inverse ratio rule” that had been used in copyright cases in the Ninth Circuit. Under the rule, the burden on a plaintiff to demonstrate substantial similarity was considered in an inverse ratio to its showing on access: where access was high, less similarity needed to be shown; in contrast, where access was low, a higher threshold of similarity was required. See Three Boys Music v. Bolton, 212 F.3d 485 (9th Cir. 2000).
In support of the district judge’s decision not to permit a jury instruction on the rule, the Ninth Circuit elected to go one step further and expressly abrogate the rule. The court held that the rule is not contained within and contravenes the Copyright Act. Not only is the concept of “access” tenuous in today’s ever increasing digital environment (see, e.g., Netflix, Spotify, Youtube, etc.), but the rule creates an unfair advantage for those with popular and readily accessible works that lacks any basis in the Act. Moreover, the rule tends to shift the burden of the plaintiff’s claim in a way that is unwarranted. Lastly, the court recognized that access may be relevant, but alone can never prove substantial similarity, much less copying.
Sufficiency of originality instructions
The court acknowledged that the originality threshold under the Copyright Act is liberally construed. However, there remains a requirement that a work contain a modicum of creativity. Additionally, copyright does not protect every aspect of a work – – ideas, concepts, and common elements are excluded. In the musical context, common and trite musical elements are not subject to protection. Songwriters may borrow such common elements and building blocks to create new works without running afoul of rights in prior works. Giving exclusive rights to any one author in such building blocks or minor elements would frustrate the purpose of the Copyright Act.
Here, the court found that the jury was properly instructed on originality. Skidmore argued on appeal that he was entitled to a selection and arrangement instruction and that the district court erred by excluding it. The Court of Appeals found no error. The similarities identified by Skidmore were rather minor and found by the jury to not form the basis on a successful infringement claim. Skidmore failed to establish that his theory of infringement based on a protectible arrangement of uncopyrightable elements was meritorious or that the district court had erred.
The Ninth Circuit’s decision adds much needed clarity to the standards that apply to copyright cases involving musical composition. In recent years, cases such as 2018’s “Blurred Lines” decision have created uncertainty for artists, publishers, and copyright holders. Here, the Ninth Court appears to have taken a significant step toward pushing back against that uncertainty to more clearly articulate the standards that copyright plaintiffs will need to meet to prevail on infringement claims.
Article by Jerome Crabtree and James Griffith
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