Tuesday, March 10, 2020
Majority—Unlike Three-Judge Panel That Handed Down Decision in 2018—Finds No Instructional Error In Case In Which Songwriter’s Estate Claims That Passage of ‘Stairway to Heaven’ Is an Infringement
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, sitting en banc, yesterday reinstated a judgment, pursuant to a jury verdict, in favor of the British rock band Led Zeppelin in an action claiming that the opening riff to its 1971 hit “Stairway to Heaven” infringed a tune to which the band’s songwriters had access.
Circuit Judge M. Margaret McKeown wrote the majority’s opinion, in which five judges joined in full and three concurred in part. A remand for a new trial had been ordered on Sept. 28, 2018, by a three-judge panel which, in an opinion by Judge Richard Paez, found prejudicial instructional error; a rehearing en banc was ordered on June 10, 2019, pursuant to a majority vote of non-recused active judges.
“Stairway To Heaven has been called the greatest rock song of all time. Yet, hyperbole aside, nearly 40 years after the English rock band Led Zeppelin released its hit recording, the song is not impervious to copyright challenges. The estate of guitarist Randy Wolfe claims that Led Zeppelin and its guitarist Jimmy Page and vocalist Robert Plant copied portions of Taurus, a song written by Wolfe and performed by his band Spirit.
“This appeal stems from the jury’s verdict in favor of Led Zeppelin and a finding that the two songs are not substantially similar. Like the jury, we don’t need to decide whether Stairway To Heaven has a place in the annals of iconic rock songs. Instead, we address a litany of copyright issues….”
Among the issues was whether District Court Judge R. Gary Klausner of the Central District of California erred in declining to play a sound recording of Taurus to assist jurors in determining whether there was such similarity as would give rise to an inference of access.
Paez said that it was error, but was harmless, because the jury did find that there was access. McKeown declared “Taurus”, released in 1967, derived protection under the 1909 Copyright Act which, unlike the 1976 act, covered only the deposited sheet music, and that it was therefore not error to play a recording.
‘Selection and Arrangement’
Among other issues was whether Klausner was remiss in declining to give a “selection and arrangement” instruction. Under Paez’s decision, the jury, in finding that the lead-in to the “Stairway to Heaven” was not substantially similar to the introductory arpeggio in “Taurus,” was handicapped by not being advised that a combination of noncopyrightable elements can be found to be subject to protection.
Paez acknowledged that the lawyers for Michael Skidmore, suing as trustee of Wolfe’s trust, never alluded at trial to “selection and arrangement,” referring, instead, to a “combination” of elements. He said the argument “splits hairs,” declaring:
“Whether or not the words ‘selection and arrangement’ were used at trial is irrelevant because it is clear that this legal theory formed the basis of Skidmore’s infringement claim.”
He added that “many selection and arrangement cases also refer to a ‘combination’ of musical elements.” The jurist went on to say:
“Defendants also argue that any error is harmless, because the jury would likely have reached the same verdict even if it had been instructed on selection and arrangement….We disagree. Without a selection and arrangement instruction, the jury instructions severely undermined Skidmore’s argument for extrinsic similarity, which is exactly what the jury found lacking.”
“The fatal flaw in Skidmore’s argument that he was entitled to a selection and arrangement instruction is that he did not present that as a separate theory at trial. To be sure, a copyright plaintiff may argue ‘infringement...based on original selection and arrangement of unprotected elements.’…The supposed centrality of a selection and arrangement theory is belied by the trial record. Skidmore never once used the words ‘selection’ or ‘arrangement’ during trial. But we do not rest our discussion on invocation of copyright vernacular; more importantly.”
“Skidmore never presented the argument to the jury. Nowhere did Skidmore argue that the claimed elements were selected and arranged in a particular way to create the resulting four-bar passage in Section A of the musical composition in Taurus. Nor was there a word in Skidmore’s closing about the selection and arrangement theory. Notably, our decision here is based on the trial evidence and not an appellate adjudication of copyrightability.”
Judge Sandra Ikuta, who had signed Paez’s 2018 opinion, concurred and dissented. Joined by Senior Judge Carlos Bea, she expressed disagreement with the omission of a “selection and arrangement” instruction, explaining:
“Without plaintiff’s requested instruction, the jury was deprived of the opportunity to consider the plaintiff’s central theory of the case, and the instructions given to the jury (to the effect that common musical elements were not protectable under copyright law) were misleading.”
Judge Paul Watford said in a concurring opinion:
“I see no reason to decide whether Skidmore adequately preserved his request for a selection-and-arrangement instruction because, even if such an instruction had been given, no reasonable jury could have found infringement here.”
‘Common Musical Elements’
In his 2018 opinion, Paez took issue with Klausner’s instruction that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protected by copyright. The judge—who did not part in the en banc rehearing—“runs contrary” to precedent “that a limited number of notes can be protected by copyright.”
He said of the instruction:
“This error was not harmless as it undercut testimony by Skidmore’s expert that Led Zeppelin copied a chromatic scale that had been used in an original manner.”
“In view of our precedent and accepted copyright principles, the district court did not commit a reversible error by instructing the jury that a limited set of a useful three-note sequence and other common musical elements were not protectable.”
While Paez insisted that a further instruction “compounded the errors” by creating the impression that elements in the public domain are never protectable, McKeown said:
“Despite Skidmore’s claim that the following language has no support in the law and was prejudicial—‘any element from prior works or the public domain are not considered original parts and not protected by copyright’—this is black-letter law.”
‘Inverse Ratio Rule’
Skidmore argued that the jury should have been instructed as to the “inverse ratio rule” under which the greater the access the alleged infringer had to a work, the less need there is for proof of substantial similarity.
Paez said the omission of the instruction was not reversible error, but that the District Court, on remand, should consider rendering the instruction. McKeown found it was not error, saying:
“Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.”
The case is Skidmore v. Led Zeppelin, 16-56057.
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