- Copyright jury won’t be comparing songs as YouTube mash-ups do
- Case turns on composition, not sound and feel of recordings
Anyone with Internet access can listen for themselves to whether Led Zeppelin’s opening “Stairway to Heaven” riff rips off a song recorded three years earlier.
But the jury deciding the fate of the rock masterpiece -- and its millions of dollars in royalties -- won’t hear a simple mash-up with the obscure 1968 instrumental “Taurus” by the group Spirit.
Instead, the only version of "Taurus" jurors will probably hear once the trial begins Tuesday is a rendition by a hired expert playing the sheet music deposited with the U.S. Copyright Office. That’s because the crux of the case isn’t whether the recordings sound alike, but whether Zeppelin borrowed too much from the underlying composition of Spirit’s work.
The trial comes amid an uptick in lawsuits over allegedly stolen songs following last year’s surprise verdict by a Los Angeles jury that Pharrell Williams and Robin Thicke’s 2013 mega-hit “Blurred Lines” infringed Marvin Gaye’s 1977 single “Got to Give It Up.” If Led Zeppelin jurors also find copyright violations, that will embolden more people to come out of the woodwork with similar allegations against major artists, according to Larry Iser, an intellectual-property lawyer with Kinsella, Weitzman, Iser, Kump & Aldisert LLP in Santa Monica, California.
“Post ‘Blurred Lines’ there’s a new tendency for people to think that these cases are easy pickings,” Iser said.
Francis Malofiy, a lawyer for the late Spirit guitarist Randy Wolfe’s trust, which brought the case, told U.S. District Judge Gary Klausner in Los Angeles before he tentatively ruled out playing a recording of “Taurus” that it would present the jury with “a false and artificial comparison of the two works.”
For a closer look at the ‘Stairway to Heaven’ case, click here
If the jury only hears a bare-bones version of “Taurus,” stripped of the "sonic landscape and techniques" which are alleged to make it the model for "Stairway to Heaven," that could offer a powerful advantage to Led Zeppelin guitarist Jimmy Page and singer Robert Plant because their song is so well-known, said Erin Ranahan, an intellectual-property lawyer with Winston & Strawn in Los Angeles.
“Most people know and love the iconic song ‘Stairway to Heaven,’ so it’s hard to conceive of that as ‘unoriginal’ without hearing the actual evidence of it,” she said.
The absence of what might be considered Exhibit A in the copyright fight doesn’t necessarily doom the infringement claim. Gaye’s heirs still won a $7.4 million award at trial -- later reduced by the judge to about $5.3 million and now on appeal -- even though his original recording was excluded as evidence. This year, singers Kanye West, Justin Bieber and Ed Sheeran have been sued for alleged copyright violations.
In both the “Blurred Lines” and “Stairway” cases, the copyright to the original works was obtained at a time when only sheet music, not sound recordings, could be registered with the federal agency that registers copyrights. That means that any alleged infringement pertains only to the musical notation, not the recorded version.
But the verdict in the “Blurred Lines” trial may not have been so much based on the musicological evidence of similarity between the songs as it was on the jurors’ taking a dislike to the songwriters, Iser said in a phone interview.
While the “Stairway” case was originally filed in 2014 in Philadelphia, lawyers for Warner Music Group Corp., Led Zeppelin’s record company, got it transferred to Los Angeles after arguing that the band had no ties to Pennsylvania. Many potential witnesses and documents are in California, where Spirit originated, a lawyer for the defendants said.
While the plaintiff is expected to call Page and Plant as witnesses to show that they were familiar with “Taurus” before they wrote their song, the defense will probably rely on experts in music theory to sway the jury. Their job would be to show that the descending bass line of “Taurus,” allegedly the key element Plant and Page stole for their song, is extremely common in pop music and can be found in many other songs such as George Harrison’s “While My Guitar Gently Weeps,” and Chicago’s “25 or 6 to 4,” Iser said.
“I’d be surprised if the musicologist for Led Zeppelin won’t have a dozen of examples of this descending bass line that precedes that of the plaintiff’s composition,” Iser said. “This is going to be a battle of experts.”
Malofiy on Friday asked for permission to use two acoustic guitars in court, which he said will be used by his expert witnesses “to play the songs, and also to compare separate parts of the songs.”
Even if the album version of “Taurus” doesn’t get played in court, it may be hard for jurors to resist the temptation to listen to it themselves, even if the judge orders them not to, Ranahan said.
“You’re going to tell a jury not to listen to the song?” she said. “It will be everyone’s first instinct to listen to it.”
The case is Skidmore v. Led Zeppelin, 15-cv-03462, U.S. District Court, Central District of California (Los Angeles).