Among copyright lawyers, Stairway to Heaven may become known not just for its abstract lyrics and acclaimed guitar solo, but also for the legal rulings that upended a jury verdict of non-infringement and sent the parties back to the District Court for a second trial to determine if the classic Led Zeppelin song was the product of copyright infringement.
In brief, the copyright owner of the song Taurus, which was written in 1966 and first performed several years before Stairway to Heaven’s 1971 release, claimed that the latter infringed the former. Although the jury found that the band, including Stairway to Heaven songwriters Jimmy Page and Robert Plant, had access to Taurus, they found that the two songs were not substantially similar and, thus, that there was no infringement. The Ninth Circuit’s ruling last week addressed multiple issues, three of which are discussed below.
First, the Ninth Circuit faulted the District Court for its failure to include a jury instruction that the selection and arrangement of non-protectable musical elements is protectable under the Copyright Act. The opinion notes that this was not a new legal principle and that, more than ten years earlier, the Ninth Circuit had affirmed a substantial similarity finding based on the manner in which five unprotected musical elements appeared in the works at issue in that case. The Ninth Circuit rejected Defendants’ argument that the omission of the instruction was “harmless error.” The Court found that the exclusion “severely undermined” Plaintiff’s ability to establish extrinsic substantial similarity, noting that Plaintiff’s expert had testified that the required similarity existed because Taurus and Stairway to Heaven incorporated the same five musical elements (some protected, some in the public domain) in the same way.
Second, the Ninth Circuit ruled that reversal was required because two of the District Court’s jury instructions regarding “originality” imposed too heavy a burden on the Plaintiff. These instructions stated that (i) elements in the public domain or included in prior works, and (ii) common musical elements like chromatic scales, arpeggios and sequences are not protected by copyright. The Court faulted these instructions for failing to clarify that the selection and arrangement of non-protected musical elements could qualify for copyright protection and ruled that they “undermined” Plaintiff’s expert’s testimony that Taurus and Stairway to Heaven were substantially similar because of the manner in which they combined unprotected elements.
Third, the Ninth Circuit agreed with the District Court that the Plaintiff could only rely on the copy of Taurus’s music composition deposited with the U.S. Copyright Office, and not also on sound recordings to prove substantial similarity because Taurus was released prior to Congress’s extension of copyright protection to sound recordings in 1972. Significantly, however, the Ninth Circuit ruled that sound recordings of Taurus should have been played for the jury during cross-examination of Led Zeppelin member Jimmy Page to prove access. Even though it accepted that the recordings were relevant to access, the District Court excluded them under Federal Rule of Evidence 403 because of its concern that jurors would consider them for purposes of substantial similarity. The Ninth Circuit deemed this an abuse of discretion that deprived jurors of the opportunity to evaluate Page’s demeanor both when he was questioned about access and when he listened to the recordings. The Ninth Circuit found the risk of juror confusion “relatively slight” and that it could be “further reduced” by admonishing the jury to only consider the recordings for purposes of access and not also substantial similarity.