When the full Ninth Circuit Court of Appeals on en banc rehearing issued its opinion in the appeal of the widely reported Led Zeppelin Stairway to Heaven case on March 9, 2020, the court took a substantial step in providing guidance for future copyright infringement claims based on allegations of “substantial similarity” between songs.
The music industry feared a potential seismic shift in how music could be created without exposure to copyright liability after a panel of Ninth Circuit judges voted 2-1 to uphold a jury verdict in favor of the heirs of Marvin Gaye on their claim against Robin Thicke and Pharrell Williams in the Blurred Lines case. In her strong dissent, Circuit Judge Jacqueline Nguyen said the decision let the Gayes “accomplish what no one has before: copyright a musical style,” and warned that the decision expanded the potential for further copyright litigation.
Around the same that the Blurred Lines trial commenced, another seminal case was filed that addressed essentially the same issue – whether basic uncopyrightable elements of song writing, if selected and arranged in a certain manner, could then be deemed copyrightable.
In May 2014, Michael Skidmore, serving as the trustee for the estate of Randy California, late front man for the band Spirit, filed a lawsuit against Led Zeppelin, accusing the band of copying the famous intro to Stairway to Heaven from Spirit’s 1967 instrumental ballad called Taurus. Skidmore claimed the portion of Taurus protected by copyright is the song’s 8-measure descending chromatic scale intro, which is similar to the descending chromatic chord progression in Stairway to Heaven. In Los Angeles federal district court, a jury ultimately sided with Led Zeppelin because Skidmore did not satisfy the “substantial similarity” test, finding that although Zeppelin had access to “Taurus,” the elements of the song that were shared by Stairway to Heaven were not original enough to be protected under copyright law.
Skidmore appealed the verdict to the Ninth Circuit, arguing, among other things,that the district court erred in its decisions to apply the Copyright Act of 1909 to Taurus and not allow Skidmore to play for the jury the actual recorded version of Taurus to buttress his argument of substantial similarity between the songs. The district court had only permitted Skidmore to put into evidence the “bare-bones” sheet music of Taurus deposited at the U.S. Copyright Office to demonstrate that the intro to Stairway was “substantially similar” to Taurus because at the time of its creation and under the 1909 law, sound recordings were not protected by copyright, only musical compositions. In September 2018, a three-judge Ninth Circuit panel sided with Skidmore, in part, and overturned the jury verdict due to its finding that the jury instructions failed to inform the jurors that unprotectable elements of a song could be protected by copyright law when “selected” or “arranged” in creative ways.
However, before the case went back to district court, the Ninth Circuit agreed to vacate the panel ruling and rehear the case en banc, indicating that the case presented many open questions for the future of music law. In its decision, the full Ninth Circuit analyzed the two factors required by Skidmore to prove copyright infringement: (1) he owned a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work.
In consideration of the first factor, the court first had to decide whether copyright protection of Taurus would fall under the Copyright Act of 1909, or the 1976 revision and limited protection afforded sound recordings created after February 15, 1972. This issue proved to be pivotal in the case because it was only with the passage of the 1971 amendment, followed by the Copyright Act of 1976, that Congress opened the door for artists (or labels) to obtain copyright protection over master sound recordings of musical compositions. Up until this time, artists like Spirit could only submit sheet music for copyright registration under the 1909 Act. The Ninth Circuit upheld the district court’s holding by concluding “that the 1909 Act controls and the deposit copy [registered in 1967] defines the scope of the Taurus copyright.” With this finding the Ninth Circuit closed the door on Skidmore’s argument that he should be able to play the recorded version of Taurus for the jury, since Skidmore did not own a valid copyright in the sound recording.
Armed only with copyright protection in a single page of sheet music, the Ninth Circuit then turned to the facts applicable to whether Skidmore had put forth sufficient evidence to satisfy the test that Stairway to Heaven was similar enough to Stairway to Heaven for unlawful copying to have occurred. The Ninth Circuit uses a two-part test to determine whether works are substantially similar. The first part compares the objective similarities of specific expressive elements in the works at issue, referred to as the “extrinsic test” and typically involves expert witnesses. The second part, known as the “intrinsic test,” looks at similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.
At trial, the jury had found in favor of Led Zeppelin on the question of whether “original elements of the musical composition Taurus are extrinsically similar to Stairway to Heaven,” and as a result did not move on the intrinsic test. The Ninth Circuit upheld the district court’s approach stating that “because the extrinsic test was not satisfied, the jury did not [need to] reach the intrinsic test.”
The final key issue in this case is that the full Ninth Circuit abrogated the “inverse ratio rule,” which had permitted a lower standard of proof to satisfy the “substantial similarity” test if a plaintiff could demonstrate that the alleged infringer had a high degree of access to the protected work. During trial, neither party disputed the fact that, during the late-1960s/early-1970s, Spirit and Led Zeppelin played at various venues together on at least three occasions, but there is no evidence the groups never toured together. One of Skidmore’s key arguments was that the district court erred by not submitting the “inverse ratio rule” to the jury. The Ninth Circuit stated that “the Second, Fifth, Seventh, and Eleventh Circuits have rejected the rule”. And, in agreement with the district court, the Ninth Circuit further stated that “[b]ecause the inverse ratio rule, which is not part of the copyright statue, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.”
The court’s elimination of the reverse-ratio rule is a significant development and substantial clarification of the law in California that will likely be seen as a boon to creators of modern music. Access to music is now more ubiquitous than ever, so it stands to reason that plaintiffs would inevitably be able to seize on the lesser standard of similarity in cases involving modern music. Of course, for those cases arising out of “classic” works like Stairway to Heaven, the abrogation of the reverse-ratio rule, may be seen as one less arrow in the copyright protection quiver. How creators synthesize this ruling, whether in defense or pursuit of copyright claims, remains to be seen, but the impact will likely be a significant one.
The case is Michael Skidmore v. Led Zeppelin, et al, case number 16-56057, in the U.S. Court of Appeals for the Ninth Circuit.