Then the lawyers will lead us to reason...
September 28, 2018 2:11 PM   Subscribe

The United States Court of Appeals for the 9th Circuit has released an opinion (pdf) in Michael Skidmore v. Led Zeppelin (which alleges that "Stairway to Heaven" contains copied portions of the instrumental song "Taurus" by the band Spirit), ordering a new copyright infringement trial. A previous jury trial denied the copyright infringement claim. Video of arguments in the appeal of that decision leading to today's appeal court decision (heard in March 2018) are available on the 9th Circuit website.

Summary from the 9th Circuit opinion:

This copyright case involves a claim that Led Zeppelin copied key portions of its timeless hit “Stairway to Heaven” from the song “Taurus,” which was written by Spirit band member Randy Wolfe. Years after Wolfe’s death, the trustee of the Randy Craig Wolfe Trust, Michael Skidmore, brought this suit for copyright infringement against Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, and the Warner Music Group Corporation as parent of Warner/Chappell Music, Inc., Atlantic Recording Corporation, and Rhino Entertainment Co. (collectively, “Defendants”). The case proceeded to a jury trial, and the jury returned a verdict in favor of Defendants. Skidmore appeals, raising a host of alleged trial errors and challenging the district court’s determination that for unpublished works under the Copyright Act of 1909 (“1909 Act”), the scope of the copyright is defined by the deposit copy. We hold that several of the district court’s jury instructions were erroneous and prejudicial. We therefore vacate the amended judgment in part and remand for a new trial. For the benefit of the parties and the district court on remand, we also address whether the scope of copyright protection for an unpublished work under the 1909 Act is defined by the deposit copy. We hold that it is. We also address several other evidentiary issues raised by Skidmore that are likely to arise again on remand. Finally, in light of our disposition, we vacate the denial of Defendants’ motions for attorneys’ fees and costs and remand those issues as well.
posted by mandolin conspiracy (43 comments total) 10 users marked this as a favorite
 
A previous jury trial denied the copyright infringement claim.

Yes, there are two paths you can go by, but in the long run
There's still time to change the road you're on
posted by leotrotsky at 2:41 PM on September 28, 2018 [13 favorites]


copyright does not protect chromatic scales, arpeggios or short sequences of three notes.

But *five* notes, of a descending chromatic scale, now you've got a case the lawyers will be arguing about for decades.
posted by sfenders at 3:10 PM on September 28, 2018 [4 favorites]


Yay!

This is one ruling that really bugged me. 1. Led Zeppelin were serial, habitual plagiarists, and have had to pay back royalties on a bunch of stuff, and even on credited covers there are strong cases to be made that Page’s arrangements are knowing lifts of others’ previous covers (and while that’s not necessarily actionable, it adds to the pattern); 2. prior to “Stairway,” Led Zeppelin’s earliest North American tour included dates opening for Spirit, and they later often covered the Spirit song “Fresh Garbage” — off the same album — live, so there’s strong reason to believe they were not only aware of “Taurus,” but intimately familiar with it; 3. the iconic intro and melody of “Stairway” is so clearly lifted from “Taurus,” practically note-for-note, that, frankly, you’d have to be profoundly deaf to deny the similarity; 4. royalties or not, it’d be no skin off Page’s back to do his usual shtick of sheepishly copping to it, claiming youthful ignorance of songwriting business practices, and moving on.

My only reservation, though, is that the suit is being brought by a trust on behalf of the late Randy California’s estate, and I hate that shit. As far as I’m concerned, all royalties should begin and end with the author. Still, though, giving credit where it’s due would be nice, and Jimmy Page can certainly afford to be nice, and does deserve to be punished. Whether some random lawyer deserves to collect, though....ehhhh.
posted by Sys Rq at 3:18 PM on September 28, 2018 [22 favorites]


But *five* notes, of a descending chromatic scale, now you've got a case the lawyers will be arguing about for decades.

Actually, that very point in the oral arguments gets pretty heated, right here around 16:10.

It's kind of fascinating to watch.

2. prior to “Stairway,” Led Zeppelin’s earliest North American tour included dates opening for Spirit, and they later often covered the Spirit song “Fresh Garbage” — off the same album — live, so there’s strong reason to believe they were not only aware of “Taurus,” but intimately familiar with it;

It's kind of fun to hear a lawyer say "FRESH GARBAGE" a bunch of times to a bunch of judges while he's making that very argument to them.
posted by mandolin conspiracy at 3:32 PM on September 28, 2018 [2 favorites]


But *five* notes, of a descending chromatic scale, now you've got a case the lawyers will be arguing about for decades.

It's funny that the other song controversy I immediately thought of was the five-note chromatic run, down and back up again, in Pink Floyd's "Echoes" vs. the descending run in Andrew Lloyd Weber's "Phantom of the Opera". Just about the simplest motif you could think of for five notes, and yet.

Am curious about those oral arguments mandolin conspiracy just mentioned.
posted by cortex at 3:39 PM on September 28, 2018 [3 favorites]


(I meant to toss links in there: Echoes, Phantom.)
posted by cortex at 3:43 PM on September 28, 2018 [1 favorite]


Does anybody remember laughter?
posted by littlejohnnyjewel at 3:44 PM on September 28, 2018 [3 favorites]


I immediately thought of was the five-note chromatic run, down and back up again, in Pink Floyd's "Echoes" vs. the descending run in Andrew Lloyd Weber's "Phantom of the Opera"

Huh. Not to Broadway/Pink Floyd derail, but...that explains one of my favourite Roger Waters lyrics, found in "It's a Miracle" on Amused to Death:

We cower in our shelters
With our hands over our ears
Lloyd-Webber's awful stuff
Runs for years and years and years
An earthquake hits the theater
But the operetta lingers
Then the piano lid comes down
And breaks his fucking fingers
It's a miracle

posted by mandolin conspiracy at 3:51 PM on September 28, 2018 [10 favorites]


Well, if we’re talking about those five notes, as long as Roger Waters isn’t suing anyone over them, I might as well narc on my teenage self’s stoner heroes: On the same album as a Syd Barrett cover, no less...ahem...
posted by Sys Rq at 4:41 PM on September 28, 2018 [3 favorites]


3. the iconic intro and melody of “Stairway” is so clearly lifted from “Taurus,” practically note-for-note, that, frankly, you’d have to be profoundly deaf to deny the similarity;

If by "be profoundly deaf" you mean "be able to hear that 'Stairway' is no more similar to 'Taurus' than it is to literally hundreds of other songs with the same bog-standard chromatic descent, many far older" then sure, I guess.

Here's some musicology on the subject. Here's some more.
posted by doubtfulpalace at 6:02 PM on September 28, 2018 [8 favorites]


Here's some more.

Ironic that the Mary Poppins clips got taken down, probably for copyright
posted by thelonius at 6:24 PM on September 28, 2018


Ironic that the Mary Poppins clips got taken down, probably for copyright

a lawyer’s as lucky as lucky can be
posted by doubtfulpalace at 6:29 PM on September 28, 2018 [3 favorites]


It sounds like a dozen hundred other small tunes with plucked string instruments; the audible version of a hundred monkeys somehow hitting a sonnet on a keyboard.
The lawyer appears to be telling a story to delay the late payment of his rent at the 16:10 mark mentioned above. .
posted by Afghan Stan at 7:15 PM on September 28, 2018


I'd love it if just once these cases would rule that our onerously long copyright protections were an undue burden on free speech. These songs are 50 fucking years old. This shouldn't be a thing.
posted by explosion at 7:50 PM on September 28, 2018 [7 favorites]


I'd love it if just once these cases would rule that our onerously long copyright protections were an undue burden on free speech.

Well, even if you don't object in principle to copyright law in that basis, it's alarming that rent-seekers are bringing and winning more and more flimsy cases. Check out the latest attempt from the Marvin Gaye rights holders.
posted by thelonius at 7:59 PM on September 28, 2018 [1 favorite]


I want copyright to last for 25 years for free, include the ability to register to extend that 25 years for $100 (and--important--you have to register, meaning it's easy to find out if something is registered), and multiply that by 10 for every 25 years more.

51-75 years? $1000 reg fee. That's a nominal fee for anything that's still making money, or that you even think might make money--but since that's each episode of a TV series, you have to believe it's got a lot of potential sales or remakes. Most movies would be re-registered... if the company that owns copyright is still in business. If not, it lapses into the public domain.

76-100 years? $10,000 reg fee; Disney can keep control of their classic movies, but all the individual cartoons are going to lapse. Up to 125 years? $100,000 for the right to restrict the people's use of content that their grandparents grew up with. Wanna pay a million dollars to lock something away for 150 years? Go for it; the government can use that money for arts and science programs, since those are the purpose of copyright.
posted by ErisLordFreedom at 8:36 PM on September 28, 2018 [9 favorites]




What really ought to matter is that the thing that makes the intro to Stairway so good -- the way the ascending treble line fits with the descending bass all on a single guitar -- was not copied from Taurus. Stairway would not be one of the great rock songs of all time if Zeppelin had simply covered Taurus and added lyrics to it. The intro to Taurus is boring. Spirit doesn't deserve credit for Stairway.
posted by straight at 10:03 PM on September 28, 2018 [5 favorites]


I loved Spirit, Randy California, etc., probably saw them live more than any other 60's group, and have only been an occasional and intermittent Zep fan, but this is crap. Artists are magpies, and all you can say is The Songs Remain Sort Of Similar.
posted by Chitownfats at 2:49 AM on September 29, 2018 [3 favorites]


Allow Disney to keep its copyrights forever if they just stop screwing with the law. Everything else expires in 40 years.
posted by dances_with_sneetches at 6:26 AM on September 29, 2018 [3 favorites]


what I love/hate about all of this is that the only way to truly do justice to Spirit is to quantify how much value those ... *five* notes, of a descending chromatic scale, actually mean to the vast millions of humans (billions possibly) who purport to love Stairway to Heaven and have paid money for it one way or another. Personally, I'd say, not that much really. Fourteen year old bought Led Zeppelin IV in 1974 because of how the drums come in about halfway through. Once I heard that, I had to own the album ... and any love that I may have ever had for those "*five* notes, of a descending chromatic scale" at the beginning of Stairway to Heaven (I'm kind of allergic to the whole thing now) -- well, those came later, after I'd ponied up my seven bucks or whatever.
posted by philip-random at 10:59 AM on September 29, 2018


I think these cases are ridiculous. You shouldn't be able to copyright a line cliche. Just like you shouldn't to be able to copyright chords.
posted by ob1quixote at 12:10 PM on September 29, 2018


It’s not just those five descending notes! It’s also that first arpeggiated chord (although this is undermined by the fact that the highest note at the top, added by LZ, changes the whole phrase in retrospect...)

If by "be profoundly deaf" you mean "be able to hear that 'Stairway' is no more similar to 'Taurus' than it is to literally hundreds of other songs with the same bog-standard chromatic descent, many far older" then sure, I guess.

While true, I think this is an obtuse way to frame it. LZ were a rock band, not HIP early guitar music enthusiasts. If you play “Spirit” to regular rock fans (i.e. NOT the hyper-aware folks that are overrepresented in music-related forums online) for the first time, more often than not they go “Hey, that sounds exactly like ‘Stairway to Heaven’!” In the context of that genre, and especially at that time, they are perceived as startlingly similar. Given the links between LZ and Taurus, and the fact that LZ were constantly ripping off virtually everyone, including for their big hits, the idea that LZ actually got the idea from a lute medley or something beggars belief. (Taurus, though, they might have, those nerds.)

Of course, this is a whole different question from “Do Taurus have a case under copyright law?”, which is itself a whole different question from “Should Taurus have a case under copyright law?”
posted by No-sword at 6:34 PM on September 29, 2018 [3 favorites]


Ugh, I always forget which is the band name and which is the song name.
posted by No-sword at 5:15 AM on September 30, 2018


even on credited covers there are strong cases to be made that Page’s arrangements are knowing lifts of others’ previous covers (and while that’s not necessarily actionable, it adds to the pattern);

Actually, you can get sued for plagiarizing an arrangement of a song, just as much as you can be sued for plagiarizing the song itself. I was close friends in college with the son of Fred Hellerman of the Weavers. Fred Hellerman sued Linda Ronstadt for recording his arrangement of the folk song "I Never Will Marry" without credit. Creating plagiarism traps for people by copyright arrangements of public domain folk songs was endemic during the 1950s and early 1960s folk revival. Randy Sparks, the founder of the New Christy Minstrels, used to have a calendar where he would mark off when Stephen Foster songs would enter the public domain. Another example is when George Martin got sued for including Glenn Miller's arrangement of "In The Mood" in his score for the Beatles, "All You Need Is Love," even though "In the Mood" itself was in public domain.
posted by jonp72 at 8:08 AM on September 30, 2018 [2 favorites]


What really ought to matter is that the thing that makes the intro to Stairway so good -- the way the ascending treble line fits with the descending bass all on a single guitar -- was not copied from Taurus.

That's a question of timbre not melody. If I play Purple Haze on accordion and try to pass it off as my own composition, I'm still plagiarizing Jimi Hendrix.
posted by jonp72 at 8:15 AM on September 30, 2018


In Led Zeppelin's defense, they could say they didn't plagiarize Taurus, because they were actually plagiarizing the end of the song from The Chocolate Watchband's And She's Lonely. Robert Plant's phrasing of "And she's buy-uy-ing a stair-air-way to heaven" is totally similar how lead singer Danny Phay phrases "And she's lonely." Some of the acoustic guitar finger-picking is very similar too.

Then again, Led Zeppelin are big boys who can fend for themselves. If they lose too much money, they can always sue Pearl Jam for swiping from "Goin' to California" in Given To Fly or Devo for using the Misty Mountain Hop riff in Uncontrollable Urge.
posted by jonp72 at 8:23 AM on September 30, 2018 [2 favorites]


While true, I think this is an obtuse way to frame it.

I might have made a more nuanced reply if I hadn't just been called "profoundly deaf."

Given the links between LZ and Taurus, and the fact that LZ were constantly ripping off virtually everyone, including for their big hits, the idea that LZ actually got the idea from a lute medley or something beggars belief.

Even if Jimmy Page were to get up on the stand and testify that listening to "Taurus" got him so excited that he stopped the record, grabbed his guitar, and wrote "Stairway" right then, it still wouldn't make him liable if the compositions are sufficiently distinct. Proving access is necessary but not sufficient.

That may sound harsh, but the alternative is to let some randomly chosen writer own a preexisting cliché (and "Taurus" is literally almost nothing but a cliché) until Disney gets tired of Mickey Mouse.

IANAL, etc.

That's a question of timbre not melody.

This is backward. The timbre of the two is quite similar, but the melody is completely different (as in, the "Stairway" intro has one and the "Taurus" intro doesn't [in the musical grammar sense—obviously any sequence of notes can be called a melody in a looser sense]).
posted by doubtfulpalace at 2:10 PM on September 30, 2018 [3 favorites]


“LED ZEPPELIN vs SPIRIT Lawsuit | Stairway To Heaven Comparison”—Rick Beato, Everything Music, 30 September 2018
posted by ob1quixote at 5:37 PM on September 30, 2018 [3 favorites]


“LED ZEPPELIN vs SPIRIT Lawsuit | Stairway To Heaven Comparison” yt —Rick Beato, Everything Music, 30 September 2018

One-stop shopping, y'all.
posted by doubtfulpalace at 5:58 PM on September 30, 2018


it still wouldn't make him liable if the compositions are sufficiently distinct

Right, and like I said, the question of whether he ripped Spirit off (which I honestly struggle to understand how anyone could, in good faith, doubt) is separate from the question of whether he infringed on their copyright. You can rip off people in all sorts of ways without infringing on their copyright (and the reverse is also true: you can infringe on their copyright without ripping them off). I’m totally with you on not letting the first asshole to copyright E-A-B-E own guitar rock forever, don’t worry.
posted by No-sword at 12:07 AM on October 1, 2018 [2 favorites]


I might have made a more nuanced reply if I hadn't just been called "profoundly deaf."

No, you hadn’t been. I said “you’d have to be profoundly deaf to deny the similarity.” That was a general you, as the actual you hadn’t commented yet. When you did, it was to agree to the similarity and claim, quite correctly, that hundreds of other things also share that similarity.

The existence of other similar things does not take away from the fact that Jimmy Page definitely knew the song, and then wrote another that sounds remarkably like it soon afterwards. It only makes Jimmy Page that much more of a lazy hack that he happened to blatantly steal something that was itself incredibly unoriginal. Maybe there’s no legal case here. But he fucking stole that shit, just like he stole nearly everything else. It could not be more obvious.

(I’ll temper this by admitting that I like the music of Led Zeppelin quite a lot, and think they vastly improved upon everything they stole. Besides, plagiarism is hardly the worst of their crimes...)
posted by Sys Rq at 4:28 AM on October 1, 2018


What you actually said was the iconic intro and melody of “Stairway” is so clearly lifted from “Taurus,” practically note-for-note, that, frankly, you’d have to be profoundly deaf to deny the similarity.

If you want to pretend that this is significantly different from saying that anyone who can't hear the "clear lift" is "profoundly deaf," I can't stop you. But I'll make the same snort of derision I made when someone first played me "Taurus" and "Stairway" back to back to "prove" Zep's plagiarism.

I like the music of Led Zeppelin quite a lot

Whereas I don't. Go figure.
posted by doubtfulpalace at 7:31 AM on October 1, 2018 [1 favorite]


the question of whether he ripped Spirit off (which I honestly struggle to understand how anyone could, in good faith, doubt)

First of all, the arguments that Page must have been (putting it in neutral terms for now) stimulated by "Taurus" to write "Stairway" are unconvincing. He may well have heard "Taurus", but it's much closer to a certainty that he would know "My Funny Valentine" or "Michelle" or "Walk Away, Renée", whether Zep toured with Spirit or not.

But let's suppose that he somehow made it through his childhood and his years as a busy session cat, playing all kinds of music, without hearing this very common chord progression. One day, he hears "Taurus", becomes an instant convert, and writes "Stairway" there and then. Plagiarism, right? Well, no, because he wrote a different song. With a new melody. Calling that a rip-off would be like saying that if I use a tritone substitution in my song I have to give writing credit to the guy who showed me one.

I highly recommend ob1quixote's video link above, which explains everything better than I can.
posted by doubtfulpalace at 12:38 PM on October 1, 2018


I watched ob1quixote’s video. I don’t disagree with it! I honestly think you and I are more in agreement than you suspect. My argument is not that “StH” is the same song as “Taurus,” or that Page stole a unique and creative chord progression from Spirit, or even that the kind of ripping-off Page did was that unusual or uncommon in the context of popular music. I don’t even know that I’d call it “plagiarism,” to be honest. I guess it’s just the refusal to acknowledge the influence after making it big that irritates me. It’s a kind of tragedy of the commons.
posted by No-sword at 3:21 PM on October 1, 2018 [1 favorite]


I guess it’s just the refusal to acknowledge the influence after making it big that irritates me. It’s a kind of tragedy of the commons.

I think partly it's a question of context. If you sat someone down in a null context and played the five note descent from Stairway, and the five note descent in Taurus, and asked 'em if there were some similarities there, you'd get plenty of easy yes answers because, hey, there's some similarities there.

If you frame the question around a series of litigations and the baggage and reputation of a massive music act and millions of dollars and a dead guy's estate, and beyond that implications for the ability of musicians to safely use common tools without risking being sued into oblivion in a legal system that exists almost at right angles with the praxis of songwriting, the question feels a lot different and the answers are gonna feel different too.

The descending line bit in Stairway sounds a lot like the descending line bit in Taurus. If that sentence could just live in isolation there wouldn't even be a conversation. That there's all this other contextual baggage is kinda fundamental to the fact that there even is a conversation to be had, and it's going to color the hell out of how people read one another, read arguments that support one legal outcome or another, etc. Ladle on some kinda needlessly hostile rhetoric elsewhere upthread and it's hard to get people back into the middle.
posted by cortex at 4:21 PM on October 1, 2018 [2 favorites]


There’s also the context of the serial plagiarists (or “artists frequently inspired by others” if that’s too needlessly hostile) writing a song that is in parts very similar to a song written by a band they had recently toured with and played covers of, this being neither the first nor last time for that exact chain of events to have transpired.
posted by Sys Rq at 4:52 PM on October 1, 2018


It’s a kind of tragedy of the commons.

It would call it more a tragedy of the enclosures. Let's assume for the sake of discussion that (1) Page knowingly used "Taurus" as a base, but (2) that he successfully made it his own.

Ideally he could say something like "One day I was messing around with this chord progression I heard on a Spirit album. I changed the chords a little bit and put a melody on top, and that was the start of Stairway." Everybody would go "cheers, mate," more or less as people did for umpty years before copyright metastasis, and that would be the end of it.

But in the real world that's an unjustified (because of assumption 2) and unfortunate lawsuit waiting to happen.

needlessly hostile rhetoric

Sorry about my contributions to that.

back into the middle

On the legal issue, I don't think you're going to find many musicologists not working for the plaintiff who consider this a copyright violation. New melody + non-idiosyncratic chord progression = new song. Maybe we all agree on that already.
posted by doubtfulpalace at 5:24 PM on October 1, 2018 [1 favorite]


I would call it more a tragedy of the enclosures.

That’s the one! Thanks.

Re your proposed “confession,” I would go a bit further. Given that LZ are notorious, uh, influencees, and this isn’t a criminal trial, I’m not really interested in giving Page the benefit of the doubt. I think it was not just the composition but the actual recording that inspired him, so he recreated (maybe not consciously or intentionally) not just the chord progression but the sound: the timbre of the guitar, the tempo, the mystical, lonely feel. And then he took them in a totally different direction in his own song. I don’t think this makes him a copyright infringer, and in my view it’s well within the bounds of what artists always have done. Totally fine. But I do think refusing to acknowledge the influence is the act of a jerk, not least because it is an (implicit) enclosure (as you correctly put it) of a part of the commons that wasn’t even originally contributed by him.
posted by No-sword at 5:45 PM on October 1, 2018 [1 favorite]


Let me just clarify to avoid further arguments: I know that you can’t copyright a tempo or a “mystical, lonely feel,” or even a chord progression. The copyright thing isn’t really relevant to my opinions on this issue at all.
posted by No-sword at 5:47 PM on October 1, 2018




But I do think refusing to acknowledge the influence is the act of a jerk, not least because it is an (implicit) enclosure (as you correctly put it) of a part of the commons that wasn’t even originally contributed by him.

For me, the jerkitude of launching a frivolous and potentially bad-precedent-setting lawsuit shines so much more brightly that anything Page did is getting lost in the glare. The Spirit guy's estate are the ones doing the land grab in my version of the metaphor.

And maybe I just find it a bit depressing, as someone who writes music, that the utter superiority of the "Stairway" intro to the "Taurus" bit isn't obvious to everyone on first listen...
posted by doubtfulpalace at 6:13 PM on October 1, 2018 [2 favorites]


That’s fair enough. I feel differently about the jerk issue (mainly because of who exactly is involved) but I can see why you’d reach the conclusion you do.

And maybe I just find it a bit depressing, as someone who writes music, that the utter superiority of the "Stairway" intro to the "Taurus" bit isn't obvious to everyone on first listen...

The funny thing is that “Stairway” retroactively makes “Taurus” much more interesting. My brain activates the “Stairway” circuits, but then “Taurus” just stays in neutral, which feels like a strange, aloof thing to do. Why is it refusing to engage? What’s with those strings? And then it just ends!
posted by No-sword at 12:03 AM on October 2, 2018 [2 favorites]


« Older Blood and oil   |   "Indelible in the hippocampus is the laughter"—Dr.... Newer »


This thread has been archived and is closed to new comments