In 2014, after the release of a remastered version of the song “Stairway to Heaven,” Michael Skidmore, on behalf of the estate of Randy Craig Wolfe, the late guitarist in the rock group Spirit, filed suit for copyright infringement and violation of the right of attribution against the surviving members of Led Zeppelin — James Patrick Page, Robert Anthony Plant and John Paul Jones — as well as Super Hype Publishing Inc. and Warner Music Group Corp.
The suit involved two songs: “Stairway to Heaven” by Led Zeppelin and “Taurus” by Spirit. Plaintiff presented evidence that Wolfe wrote “Taurus” in 1966 and performed it before he entered into an exclusive songwriter agreement with Hollenbeck Music in 1967. Led Zeppelin recorded “Stairway to Heaven” between December 1970 and January 1971. While fans and critics alike have noticed the similarities between the two songs, Wolfe did not file suit during his lifetime. Plaintiff became trustee of the Randy Craig Wolfe Trust in 2006 and sued in 2014, 43 years after the initial release of “Stairway to Heaven.”
Defendants raised three defenses to the copyright infringement claim: (1) abandonment/waiver, (2) laches and (3) defective deposit copy. The abandonment defense was based on statements Wolfe made during a 1991 interview that he did not object to Led Zeppelin’s use of the introduction to “Taurus” in their song. However, the district court found that plaintiff had proffered sufficient evidence to raise a triable issue regarding abandonment, because (1) the journalist who conducted the interview testified that Wolfe never received or reviewed the interview notes before the article was published, (2) the tenor of the interview indicated that Wolfe actually felt cheated by Led Zeppelin and was attempting to make light of a bad situation, and (3) Wolfe told other people he wanted to sue over the song but was intimidated or deterred from doing so.
Next, the district court rejected defendants’ argument that the copyright claim was barred by the doctrine of laches. Although plaintiff did not file suit until more than four decades after “Stairway to Heaven” was first released, he did bring suit within the three-year statute of limitations — that is, within three years after the release of the remastered version of “Stairway to Heaven.” The court rejected defendants’ argument that plaintiff’s delay precluded him from seeking infringer’s profits, but allowed defendants to seek to reduce an award of profits in the event liability were established.
Finally, the district court rejected defendants’ argument that the deposit copy of the “Taurus” musical composition was invalid because it did not bear the official Library of Congress stamp. The Ninth Circuit has held that mistakes or omissions on copyright registration materials do not invalidate a copyright absent detrimental reliance by the infringer or intentional fraud by the registrant, noted the district court.
Defendants also argued that plaintiff could not sue for copyright infringement because (1) the song is a work for hire owned by Hollenbeck Music, (2) Wolfe did not comply with statutory formalities to secure his federal copyright interest and (3) Wolfe’s failure to timely respond to discovery requests meant that he had conceded the work-for-hire issue. Since “Taurus” was created before 1978, the 1909 Copyright Act governed, and under the 1909 Act, the author of a work owns the copyright in the work. However, the definition of “author” includes “employer in the case of works made for hire.” Since the 1909 Act did not include a definition of “work made for hire” or “employer,” courts have ruled that the work-for-hire doctrine refers only to works made by employees in the regular course of their employment.
In 1967, Wolfe entered into an exclusive songwriting agreement with Hollenbeck, in which he was deemed a “writer for hire” with “full rights of copyright renewal vested in Hollenbeck.” Hollenbeck originally registered a copyright in the “Taurus” musical composition, naming Hollenbeck as the “Copyright Claimant” and Wolfe as the “Author.” In 1996, however, Wolfe renewed the “Taurus” registration in his own name, without any reference to Hollenbeck. Then in 2016, Hollenbeck filed supplementary registrations with the Copyright Office, amending both the 1967 initial registration and the 1996 renewal registration to clarify that “Taurus” was a work for hire. Defendants argued that the songwriter agreement and the copyright registration certificates established that “Taurus” was a work for hire.
The district court found that defendants’ reliance on the copyright registration certificates was misplaced. It pointed out that a copyright certificate establishes only prima facie evidence of the validity of a copyright and of the facts in the certificate. Plaintiff proffered sufficient evidence to rebut the presumption by presenting evidence that “Taurus” was written and performed in 1966, before Wolfe entered the songwriter agreement with Hollenbeck. Lastly, the district court rejected defendants’ arguments that plaintiff’s untimely response to a request for admission and failure to comply with statutory formalities constituted a concession that “Taurus” was a work for hire.
Regarding the issue of copying, the court found that, while there was no direct evidence that Led Zeppelin had heard “Taurus” or that “Taurus” was so widely distributed that access could be presumed, plaintiff had submitted circumstantial evidence from which a jury could conclude that Led Zeppelin had heard “Taurus.” Plaintiff demonstrated that Spirit and Led Zeppelin had performed at the same concert at least three times and that members of the bands had interacted with each other at these concerts. Plaintiff also presented evidence Spirit “regularly” played “Taurus” at their concerts during this time period, and that Led Zeppelin members had admitted to copying musical elements of other Spirit songs.
On the issue of copying, the district court found that plaintiff failed to present evidence of striking similarity, but had raised a triable issue as to substantial similarity. The district court first found that plaintiff’s experts had improperly considered unprotected performance elements in the sound recording of “Taurus,” whereas the only copyrighted work at issue was the musical composition. However, the district court found that under the extrinsic test, the structural similarities in the works — specifically the use of a descending chromatic four-chord progression — was enough to create a triable issue regarding substantial similarity.
Turning to the issue of damages, defendants argued that any potential recovery should be reduced by 50 percent because plaintiff was suing as a beneficial owner based on his right to royalties under the 1967 exclusive songwriter agreement. Plaintiff did not oppose this argument, and the district court granted summary judgment, holding that plaintiff, as a beneficial owner, was entitled to only 50 percent of the recovery.
The district court rejected defendants’ argument that plaintiff’s damages should not include damages from foreign profits. While the Ninth Circuit has held that “infringing actions that take place entirely outside the United States are not actionable” under the Copyright Act, a plaintiff may recover damages flowing from exploitation abroad of the domestic acts of infringement. Although it was not disputed that Led Zeppelin had first composed “Stairway to Heaven” in the United Kingdom, plaintiff presented testimony that an early iteration of “Stairway to Heaven” was actually mixed in Los Angeles. The court therefore held that summary judgment was inappropriate.
The court did grant summary judgment in favor of defendants Jones, Super Hype Publishing and Warner Music, because none of those parties had performed or distributed “Stairway to Heaven” within the three years preceding the instant action.
Finally, according to the court, plaintiff presented “an inventive — yet legally baseless — claim creatively termed, ‘Falsification of Rock ‘n Roll History.’” Plaintiff’s right of attribution claim also failed because under the Copyright Act, only works of visual arts are entitled to the right of attribution.