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.

50664380 - slippery stairs warning signIn 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.

By: Self-portrait by the depicted Macaca nigra female; rotated and cropped by David Slater. [Public domain], via Wikimedia Commons
The Ninth Circuit dropped the curtain last week on nearly three years of litigation waged by People for Ethical Treatment of Animals (PETA) against wildlife photographer David Slater in the infamous “Monkey Selfie” case by declaring that monkeys do not have standing to sue for copyright infringement.

In 2011, Slater left his camera unattended on the island of Sulawesi, Indonesia when a crested macaque named Naruto grabbed the camera and took several photographs of himself.  A few years later, Slater published the pictures online and drew the ire of PETA, which filed a complaint in 2015.  PETA alleged Slater infringed Naruto’s copyrights in the photos and claimed it could adequately defend Naruto’s rights as the macaque’s “next friend.”  The law allows “next friends” to sue on behalf of others if the individual they represent lacks capacity to prosecute his or her own case.

The district court dismissed the action on the grounds that monkeys do not have standing to sue under the Copyright Act.  PETA appealed, but after participating in oral argument, entered into a settlement agreement with Slater whereby PETA would withdraw its appeal in exchange for Slater donating a portion of the profits earned from the pictures to charities that protect crested macaques in Indonesia.  Nevertheless, Naruto was not named a party to the settlement and the Ninth Circuit did not take kindly to PETA resolving the matter without its “next friend.”

“In the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed ‘friend’ having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests,” wrote Judge Carlos Bea who sarcastically added that Naruto should consider suing PETA for breach of fiduciary duty.  “Puzzling, while representing to the world that ‘animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way’ PETA seems to employ Naruto as an unwitting pawn in its ideological goals,” Bea argued.

Notwithstanding the settlement agreement, the Ninth Circuit issued an opinion.  It found Naruto, as the alleged owner of the photographs, technically had Article III standing since he suffered a concrete and particularized economic harm that could be redressed by the court.  However, the Ninth Circuit found the Copyright Act only authorizes humans and legal entities to sue for infringement since it does not expressly permit otherwise.  The court also reasoned the Act’s language referencing an author’s “children,” “grandchildren,” and “widow/widower” implies humanity as animals cannot marry or produce heirs entitled to property by law.

Jeff Kerr, general counsel for PETA, disagrees.  “Naruto should be considered the author and copyright owner, and he shouldn’t be treated differently from any other creator simply because he happens to not be human,” Kerr said in an interview with Time.

PETA has not yet decided whether it will appeal the ruling to the United States Supreme Court.  As for Naruto, he could not be reached for comment.

21575590 – dolphins at sea

The Ninth Circuit issued an opinion last Friday that seems second nature. The court affirmed summary judgment for Wyland Galleries against marine wildlife artist Pieter A. Folkens, who claimed Wyland copied Folkens’s drawing of crossing dolphins in Wyland’s giclée titled “Life in the Living Sea.”  Folkens asserted Wyland created enough of the allegedly infringing prints to net over $4 million in sales.

Folkens published his black and white drawing in 1979, which depicts one dolphin swimming vertically and the other swimming horizontally.  Wyland, best known for its “whaling wall” murals displayed worldwide, created a color print in 2011 depicting three dolphins, aquatic plants, and other wildlife.  Two of the dolphins in Wyland’s work are crossing, but do so at different angles than those in Folkens’s drawing.  Folkens acknowledged the concept of crossing dolphins occurs in nature and cannot qualify for copyright protection.  Dolphin crossing is typical behavior since dolphins are social animals and often travel in groups.  However, Folkens argued his particular expression of the dolphins warranted protection and Wyland’s work was substantially similar to his depiction.

The Eastern District of California had awarded summary judgment for Wyland in 2016, holding natural positioning and physiology of animals are not protectable.  The Ninth Circuit affirmed this decision citing the principles set forth in Satava v. Lowry, which considered whether a life-like jellyfish sculpture in clear glass could be protected.  In that case, the court recognized ideas, “first expressed in nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.”  If this were not the case, the Court noted an artist could monopolize images of geese flying in a “V” as they migrate, a mother duck leading ducklings out of a pond, a hummingbird hovering over a flower as it sucks its nectar, bats hanging upside down in cave, and countless other scenes commonly found in nature.

The Court in the instant case acknowledged an artist may receive protection for how a wildlife scene is expressed, such as pose, attitude, gesture, muscle structure, facial expression, coat and texture.  However, any such protection is “thin,” which means the defendant’s work must be virtually identical to be held infringing.  The Court found this not to be the case here where Folkens’s work is a relatively basic drawing in black and white.  Conversely, Wyland’s print is in color and features numerous additional elements.  Wyland’s dolphins also do not have the same texture and skin tone as Folkens’s, which possess distinctive ripples.  That Folkens enlisted animal trainers to create the scene he captured is irrelevant, said the Court, because the scene is merely a recreation of what commonly occurs in nature.

Barring an appeal to the California Supreme Court, the Ninth Circuit’s decision brings this dolphin tale to a close.