Tuesday, June 11, 2019
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday ordered an en banc hearing in a case in which a three-judge panel on Sep. 28 reversed the judgment in favor of the English rock band Led Zeppelin which, the plaintiff alleges, copied the introductory arpeggio of “Stairway to Heaven” from another band’s work.
Circuit Judge Richard A. Paez wrote for the three-judge panel. Other members were Circuit Judge Sandra S. Ikuta and District Court Judge Eric N. Vitaliano of the Eastern District of New York, sitting by designation.
Jury instructions by District Court Judge R. Gary Klausner of the Central District of California, the panel held, were erroneous and prejudicial, failing to inform jurors of plaintiff Michael Skidmore’s theory of liability. It ordered a new trial.
Skidmore, as trustee for the estate of Randy Wolfe (who died in 1997), contends that “Stairway to Heaven” infringes on “Taurus,” composed by Wolfe, who was a member of the band, Spirit. The jury in 2016 found that that Led Zeppelin band members did have access to the 1968 instrumental “Taurus” but that the two works are not substantially similar.
“Stairway to Heaven” was released in an album on Nov. 8, 1971 and was an enormous hit.
A majority of the nonrecused active judges of the court opted for an en banc determination, setting arguments before an 11-judge panel for the last week in September. Circuit Judge Daniel Collins did not participate in the vote.
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