‘Stairway to Heaven’ Jury Instructions Didn’t Reveal Plaintiff’s Theory

Monday, October 1, 2018

Page 1

Ninth Circuit:

‘Stairway to Heaven’ Jury Instructions Didn’t Reveal Plaintiff’s Theory

SHANE PATRICK ETCHISON, Staff Wrtiter

—AP

In this 1985 file photo, Led Zeppelin bandmates, singer Robert Plant, left, and guitarist Jimmy Page, reunite to perform for the Live Aid famine relief concert at JFK Stadium in Philadelphia.

The Ninth U.S. Circuit Court of Appeals on Friday reversed a jury verdict finding that legendary rock-and-roll band Led Zeppelin did not rip off an earlier song in composing “Stairway to Heaven” because the instructions given at trial failed to clue in the jury to the plaintiff’s theory of liability.

The unanimous opinion was written by Judge Richard A. Paez. District Court Judge R. Gary Klausner of the Central District of California presided over the trial.

The plaintiff in the case, Michael Skidmore, is the trustee who owns the rights to the 1966 song “Taurus” by the Los Angeles band Spirit. Skidmore sued Led Zeppelin, its members and related entities on behalf of the trust in 2014 for allegedly cribbing the introductory arpeggio from “Taurus” for the lead-in to the 1971 classic “Stairway to Heaven.”

Led Zeppelin bassist John Paul Jones, Warner Music Group and Super Hype Publishing were granted summary judgment before trial, as none of them had performed the song during the three-year statute of limitations period preceding the lawsuit.

While arpeggios are not by themselves copyrightable, Skidmore sought to prove that the allegedly stolen riff had been deployed in an original fashion in “Taurus” such that it was subject to protection.

Mutually Requested Instruction

In their proposed jury instructions, both parties requested one explaining that “the selection and arrangement of unprotectable musical elements are protectable.” Klausner declined to include such an instruction.

This, Paez explained, was error. He wrote:

“The copyright in an arrangement of public domain elements extends only to the originality contributed by the author to the arrangement….Thus, there can be copyright protection on the basis of a sufficiently original combination of otherwise non-protectable music elements. The district court’s failure to so instruct the jury was especially problematic in this case, because Skidmore’s expert, Dr. Stewart, 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.”

Other Instructions Misleading

Addressing two instructions which were given, Paez said:

“First, Skidmore contends that Jury Instruction No. 16 erroneously stated that copyright does not protect ‘chromatic scales, arpeggios or short sequences of three notes.’ Second, Skidmore argues that Jury Instruction No. 20 on originality should not have instructed the jury that ‘[h]owever, any elements from prior works or the public domain are not considered original parts and not protected by copyright’.…”

He continued:

“Jury Instruction Nos. 16 and 20 in combination likely led the jury to believe that public domain elements—such as a chromatic scale or a series of three notes—were not protectable, even where there was a modification or selection and arrangement that may have rendered them original.…the instructions undermined Skidmore’s expert’s testimony that ‘Taurus’ and ‘Stairway to Heaven’ were similar because of the combination of otherwise unprotectable elements.”

Scope Ruling Affirmed

The opinion affirms Klausner’s ruling that the scope of protection of the Copyright Act of 1909—which governed at the time the two songs were released—covers only the “deposit copy” of a song.

Under the 1909 Act, a song obtained a federal copyright when its sheet music was published or, in the case of songs without a published version of their sheet music, like “Taurus,” when a copy of the sheet music was deposited with the U.S. Copyright Office.

The deposit copy was required to be sheet music, not a recording. Klausner did not allow Skidmore to play a recording of “Taurus” as performed by Spirit, but did allow an expert witness to play his interpretation of the deposit copy for the jury.

Paez explained:

“Overall, the structure of the 1909 Act demonstrates that the deposit copy encompasses the scope of the copyright for unpublished works, as the deposit copy must be filed not only to register the copyright, but for the copyright to even exist.…Because the 1909 Act makes the existence of copyright dependent on the deposit copy, it makes sense that the deposit copy also defines the scope of the copyright.”

Though Spirit’s rendition was outside the scope of the copyright, Paez declared the court had committed harmless error in not allowing “Taurus” to be played as support for Skidmore’s proposition that Led Zeppelin guitarist Jimmy Page and singer Robert Plant, who wrote “Stairway to Heaven,” had access to the earlier song.

Led Zeppelin had performed in concert alongside Spirit before creating “Stairway to Heaven,” and occasionally played a cover of another Spirit song in their own set. Page testified at trial that he owned a copy of Spirit’s eponymous album featuring “Taurus,” but did not remember when he had obtained it.

Klausner ruled that allowing Page to listen to “Taurus” would be unduly prejudicial for the jury, despite Skidmore’s contention that it would help the jury determine whether the guitarist had access to the song.

Nevertheless, the jury found that Page and Plant had access to “Taurus.”

Paez noted that in the event of retrial, the court should allow the song to be played. He wrote:

“Skidmore argues that by not allowing the jury to observe Page listening to the recordings of ‘Taurus,’ the effect of the court’s ruling was to decrease the probative value of Skidmore’s questioning of Page.…Limiting the probative value of observation was not proper here, as the risk of unfair prejudice or jury confusion was relatively small and could have been reduced further with a proper admonition.”

The case is Skidmore v. Led Zeppelin, No. 16-56057.

Francis Malofiy of Francis Alexander in Pennsylvania argued before the panel for Skidmore. The defendants were represented by Peter J. Anderson of Santa Monica.