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IP/Entertainment Case Law Updates

Skidmore v. Led Zeppelin

Ninth Circuit orders new trial in copyright infringement suit alleging that Led Zeppelin copied its hit “Stairway to Heaven” from Spirit’s “Taurus,” holding it was reversible error to fail to instruct jury that selection and arrangement of unprotectable musical elements could be protectable and that jury should have heard recording of “Taurus” performed by band Spirit on grounds that it was relevant to issue of access.

Plaintiff Michael Skidmore, as trustee of the Randy Craig Wolfe Trust, filed this suit against Led Zeppelin, its band members and a number of music production companies, alleging that rock hit “Stairway to Heaven” infringed the copyright in “Taurus,” a 1967 instrumental song written by Randy Wolfe when he was a member of the band Spirit. After trial, the jury returned a verdict in favor of Led Zeppelin, finding no infringement. On appeal, Skidmore argued that the district court committed reversible error by failing to instruct the jury that the selection and arrangement of unprotectable musical elements are protectable, by limiting the scope of the protectable copyright in “Taurus” to its deposit copy and by precluding the jury from hearing sound recordings of “Taurus” as played by Spirit, among other things.

As an initial matter, because Skidmore undisputedly owned a valid copyright in “Taurus,” the Ninth Circuit focused on whether a prejudicial error in jury instructions occurred with respect to substantial similarity. Noting that the extrinsic test for substantial similarity implicates “breaking the words down into their constituent elements, and comparing those elements,” the court held that it was reversible error for the court to fail to instruct the jury that although individual elements of a song may not be protectable, some original combination of those musical elements is protectable. The court found this especially problematic because the basis for Skidmore’s copyright infringement claim was grounded in a “selection and arrangement theory” – Skidmore’s expert testified that there was “extrinsic substantial similarity based on the combination of five elements – some of which were protectable and some of which were in the public domain.” Both sides proposed a version of a selection and arrangement theory in their respective jury instructions, which the court did not include. Accordingly, the court commented on the contradictory nature of Led Zeppelin’s position on appeal in its attempt to argue that Skidmore was, alternatively, relying on “the similarity of a ‘combination’ of elements present in Taurus and Stairway to Heaven.” The court also disagreed that the error was harmless, finding “[w]ithout a selection and arrangement instruction, the jury instructions severely undermined Skidmore’s argument for extrinsic similarity, which is exactly what the jury found lacking.”

Next, as an issue of first impression, the Ninth Circuit held that the sheet music deposit copy of Taurus, rather than a sound recording, defined the scope of the protectable copyright. Looking to the statutory scheme and legislative history of the 1909 Act, the panel was unconvinced by Skidmore’s policy arguments and assertion that a deposit copy is “purely archival in nature.” The court specifically cited the requirement, under the 1909 Act, that the deposit copy be filed “not only to register the copyright, but for the copyright to even exist.” Put another way, the existence of a copyright under the 1909 Act is dependent upon the deposit copy. Because copyright protection under the 1909 Act did not “attach until either publication or registration,” the court found that the deposit copy defines the scope of the copyright for unpublished works and that there was no error in this aspect of the district court’s ruling.

Lastly, the panel concluded it was harmless error to preclude the jury from hearing sound recordings of Taurus, because the jury ultimately found that both Jimmy Page and Robert Plant had access to Taurus. The court endeavored to determine whether the district court abused its discretion in doing so, however, noting that the issue would likely come up during the retrial. Applying the balancing test under Federal Rule of Evidence 403, the court concluded that it was an abuse of discretion to find that the probative value of playing “Taurus” sound recordings for the jury, on the issue of access, was “substantially outweighed by danger of . . . unfair prejudice.” In this case, any concerns about prejudice or confusing the jury were “relatively small” and, according to the court, could have been limited by a “proper admonition” that the recordings were to be considered for the limited issue of access, and not to be used in assessing substantial similarity. 

Summary prepared by Jonathan Zavin and Mary Jean Kim