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IP/Entertainment Case Law Updates

Skidmore v. Led Zeppelin

On rehearing en banc, Ninth Circuit reinstates 2016 jury verdict that Led Zeppelin’s iconic 1971 song Stairway to Heaven did not infringe copyright to song Taurus, ruling that sound recordings of Taurus were properly excluded at trial and abrogating Ninth Circuit’s long-standing “inverse ratio rule."

In the latest chapter of a legal saga involving the iconic rock and roll classic Stairway to Heaven (read our previous summaries here and here), the Ninth Circuit, sitting en banc, reinstated a 2016 jury verdict in favor of English rock band Led Zeppelin, its members and the band’s music publishers. The case began in 2014 when plaintiff Michael Skidmore, as trustee of the Randy Craig Wolfe Trust, filed a copyright infringement suit alleging that Led Zeppelin’s 1971 song Stairway to Heaven infringed on the copyright of the instrumental rock song Taurus, written by Randy Wolfe and performed by his band Spirit in the 1960s. After a five-day trial, the jury returned a verdict for Led Zeppelin, finding that while Led Zeppelin had access to Taurus, the two songs were not substantially similar under the “extrinsic test,” one of two tests that must be satisfied in the Ninth Circuit for works to be deemed substantially similar. Following Skidmore’s appeal, a panel of the Ninth Circuit vacated the judgment in 2018 and remanded the case for a new trial (read our summary of the Ninth Circuit’s decision here). The Ninth Circuit subsequently granted rehearing en banc.  

A primary issue on appeal was the district court’s ruling that the copyright in Taurus extended only to the single-page sheet music transcription deposited with the Copyright Office, and that sound recordings of Taurus were excluded as evidence. Skidmore argued that the Taurus copyright extends beyond the sheet music deposit and that the deposit copy is merely archival. Rejecting this argument, the en banc court affirmed the district court’s ruling, concluding that the Taurus deposit copy defined the scope of the song’s copyright. The 1909 Copyright Act that governs the Taurus copyright, the Ninth Circuit explained, did not afford protection to sound recordings and, for an unpublished musical composition such as Taurus, copyright registration could be obtained only by depositing a copy of the work with the Copyright Office. Accordingly, the Ninth Circuit held that the Taurus deposit copy “defines the four corners” of the Taurus copyright and that the district court did not err in excluding the sound recordings at trial. The en banc court also rejected Skidmore’s contention that the recordings should have been played for the jury to establish Led Zeppelin’s access to and copying of Taurus, affirming the district court’s ruling that this would have been unfairly prejudicial and noting, in any event, that the issue was moot since the jury found that Led Zeppelin had access to Taurus.

Skidmore also appealed district court rulings concerning the jury instructions provided at trial. First, Skidmore contended that the district court erred in failing to give an instruction to the jury regarding the “inverse ratio rule." As explained by the court, a copyright infringement claim requires proof of “copying” and that the works are “substantially similar” so as to constitute “unlawful appropriation.” To satisfy the copying prong, a plaintiff must either present direct evidence of copying, or that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying. Under the Ninth Circuit’s inverse ratio rule, adopted in 1977, “the stronger the evidence of access, the less compelling the similarities between the two works need be in order to give rise to an inference of copying.” After detailing the history of the inconsistent application of the inverse ratio rule, including the confusion and commingling of the copying and unlawful appropriation prongs of the infringement analysis, the Ninth Circuit abrogated the rule and precedents applying it. Accordingly, the Ninth Circuit held that the district court did not err in failing to provide an inverse ratio rule instruction to the jury.

The en banc court further rejected Skidmore’s appeal of certain jury instructions given by the district court. Skidmore objected to, among other things, the trial court’s instruction that copyright does not protect common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes—elements Skidmore claimed Led Zeppelin copied. The Ninth Circuit affirmed the district court’s decision to give that instruction to the jury, concluding that it was an accurate representation of copyright law. 

Skidmore also appealed the district court’s omission of a “selection and arrangement” instruction, which would have conveyed to the jury that the combination of unprotectable musical elements can itself be copyrightable. The Ninth Circuit rejected Skidmore’s position on multiple grounds. First, the court found that Skidmore failed to preserve his objection to the district court’s omission of a selection and arrangement instruction. The court also held that there was no miscarriage of justice under a “plain error” standard, because such an instruction “would not have convinced the jury that Stairway to Heaven was substantially similar to the deposit copy of Taurus.” In any event, the en banc court ruled that the district court did not commit “any error” in failing to give a selection and arrangement instruction. Though Skidmore’s expert discussed five separate musical components and indicated their presence in both songs, the court explained that copyright protection over the selection and arrangement of elements extends to “the particular way in which the artistic elements form a coherent pattern, synthesis, or design.” Identifying a “combination” of elements without explaining how they are “particularly selected and arranged amounts to nothing more than trying to copyright commonplace elements.” Accordingly, a plaintiff “cannot establish substantial similarity by reconstituting the copyrighted work as a combination of unprotectable elements and then claiming that those same elements also appear in the defendant’s work, in a different aesthetic context.”  

Rejecting Skidmore’s other contentions, the Ninth Circuit affirmed the judgment that Led Zeppelin’s Stairway to Heaven was not substantially similar to and did not infringe Taurus. On a cross-appeal by defendant music publisher Warner/Chappell, the en banc court also affirmed the district court’s denial of attorneys’ fees and costs. 

Summary prepared by Kyle Petersen and Wook Hwang 

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