Whose Stairway? Led Zeppelin Copyright Case Returns to Ninth Circuit

On September 23rd, the five-year-old lawsuit following Led Zeppelin’s “Stairway to Heaven” was once again back in court. In 2014, the band was accused of copyright infringement by the rock band Spirit, who claimed similarities between their song “Taurus” and the famous introduction to “Stairway to Heaven.” As Skidmore v. Led Zeppelin weaves a circuitous path through the courts, its final ruling will carry significant implications for both copyright law and the music industry. Nevertheless, the confusion and disagreement among courts in previous decisions on the Led Zeppelin case exemplify recurring problems in music copyright law that should be resolved: namely, jurors are often given imprecise instructions on interpreting music and it is unclear what constitutes as an infringement of a song. 

Copyrights, as per the United States Copyright Office, protect “original works of authorship” in a “tangible form of expression”. [1] The owner of the copyright has the sole rights to reproduce, sell copies of, and perform the work. [2] Copyright infringement can be proved through proof of copying or by showing “substantial similarities” between the works. [3] In the Ninth Circuit Court of Appeals, substantial similarities between two musical works can be demonstrated through two tests: the extrinsic test directly compares musical elements like chord progressions or melodies, while the intrinsic test is a subjective comparison of overall concept and feel. [4]

Skidmore v. Led Zeppelin began when Michael Skidmore (representing the estate of Randy Wolfe, a member of Spirit) sued Led Zeppelin for copyright infringement in the U.S. District Court for the Central District of California. In 2016, jurors decided there was no copyright infringement based on the extrinsic test; direct comparisons of musical elements failed to convince jurors of a marked similarity between the songs. [5] However, upon further review in 2018, a panel on the Ninth Circuit Court of Appeals ordered a new trial because the jury instructions in the 2016 trial were found to be “erroneous and prejudicial.” [6] Specifically, the jury was told that common musical elements are not protectable by copyright law, but they were not informed that a “numerous” and “original” combination of unprotectable elements (like a title hook phase and a certain cadence together) may be protectable as determined in the Ninth Circuit’s decision in Three Boys Music Corporation v. Michael Bolton. [7] Furthermore, the jury was told that short sequences of notes were not protectable, which was previously determined to be untrue in the Ninth Circuit’s decision on Seth Swirsky v. Mariah Carey. [8]

This being said, the full appeals court has since set aside this ruling to reconsider, once again, whether the case should return to trial. This time, on September 23, the hearing was heard through an en banc review, or with a full 11-judge panel of the US Appeals Court. [9]

One contentious point in this hearing was whether the sound recording of “Taurus” was copyrighted. In modern music copyright law, both the sound recording and the written composition can be copyrighted. [10] However, both “Taurus” and “Stairway to Heaven” were copyrighted under the Copyright Act of 1909, which only protects the written sheet music deposited with the U.S. Copyright Office. Yet often there are discrepancies between the sound recording and how performances of the sheet music sound, so the fact that the sound recordings of older songs are not protected under copyright is significant. Nevertheless, this issue of sheet music copyright is reserved only to older songs; in recent lawsuits, like the Williams v. Gaye case on Pharrel Williams’ “Blurred Lines” (2013) and Marvin Gaye’s “Got to Give It Up” (1977), the sound recordings were protected by copyright and therefore used in trial. [11] Thus, unless the judges in Skidmore v. Led Zeppelin unexpectedly consider the sound recording to be copyrighted, this issue is unlikely to affect future music copyright cases. 

The final outcome of Skidmore v. Led Zeppelin case may just hinge on the sheet music that was copyrighted in 1968. However, the court’s guidance on the scope of protectable musical aspects and on how juries should determine substantial similarities will have larger implications for the music industry today. 

If a jury decides the combination of musical elements in “Taurus” is substantially similar to that of “Stairway to Heaven,” their decision would set precedent to widen the basis of copyright infringement. Many musical groups fear that under such standards, accidental or trivial overlaps of musical elements could be grounds for a lawsuit. In fact, a group of 123 artists and musical groups, including the Nashville Songwriters Association International, the Songwriters Of North America, Jason Mraz, and Korn have filed an amicus curiae brief in the Led Zeppelin case, arguing that the overlap between “Taurus” and “Stairway to Heaven” is too basic to be considered copying. [12] They also argue that, because there are inherently a limited number of chords and notes, one copyright could encompass many dissimilar songs if any combination of common elements can be protected. 

The confusion in jury instructions originates from the difficulty in aligning musical concepts to precise legal terms.  This is a persistent problem with music copyright law: due to jurors’ lack of technical music expertise and imprecise legal instructions, it is difficult to reach consensus on what constitutes infringement. 

With this in mind, several new copyright infringement tests have been recommended. In “The "Blurred Lines" of Copyright Law: Setting a New Standard for Copyright Infringement in Music”, Joseph M. Santiago, a then-J.D. Candidate, devises one such mechanism. His “Unique Quality Test” first identifies the unique aspects of a particular song and then compares two works to determine if there are similarities. [13]

On the other hand, Nicole Lieberman, an intellectual property attorney, advocates for applying the established “AFC” test to music copyright law. [14] The AFC test, which is currently used for infringement of computer software, consists of three parts: abstraction, in which the ideas and expression of the program are separated; filtration, in which unprotectable ideas are removed from consideration; and comparison, in which protectable elements of two works are compared. This test was developed in the Second Circuit in Computer Associates v. Altai (1992), a copyright dispute over two job-scheduling programs; the AFC test has since been widely adopted for non-literal parts of computer programs (like screen displays or menu interfaces, as opposed to source code or object code). [15] Lieberman advocates for the AFC test to more accurately determine musical originality in copyright cases. 

Both tests essentially seek to reduce the information presented to a jury, eliminating confusion on what is protectable and what is not. Solutions like these would require more input from musical experts, who could make music copyright cases more standardized and objective. While it may seem that this reduces the jury’s decision-making power, providing only the necessary information would reduce confusion and allow for a more informed decision. 

The outcome of the Ninth Circuit’s decision on Skidmore v. Led Zeppelin would set guidance on future music copyright cases. This case even directly affects a lawsuit between the Marvin Gaye estate and Ed Sheeran; that case is currently on hold in Manhattan federal court until the Led Zeppelin case is resolved. Regardless of whether there is to be a retrial, the Ninth Circuit should clarify a narrow scope of the basis for copyright infringement and provide more rigorous jury guidelines for music copyright cases.

[1] “Copyright Basics,” Circular 1, United States Copyright Office, 1, 1 (2019).

[2] Ibid.

[3] Nicole Lieberman, “Un-Blurring Substantial Similarity: Aesthetic Judgments and Romantic Authorship in Music Copyright Law,” 6 JIPEL 91, 93 (2016).

[4] Skidmore v. Ledd Zeppelin, 1, 3 (9th Cir. 2018). 

[5] Michael Cabanatuan, “Judges consider whether Led Zeppelin copied opening notes to ‘Stairway to Heaven’,” San Francisco Chronicle, Sep. 23, 2019.

[6] Skidmore v. Ledd Zeppelin, 1, 3 (9th Cir. 2018). 

[7] Quoted in Skidmore v. Ledd Zeppelin, 1, 15 (9th Cir. 2018). 

[8] Seth Swirsky v. Mariah Carey, 376 F.3d 841, 849 (9th Cir. 2004).

[9] Michael Cabanatuan, “Judges consider whether Led Zeppelin copied opening notes to ‘Stairway to Heaven’,” San Francisco Chronicle, Sep. 23, 2019.

[10] Gigen Mammoser, “The THUMP Guide to Music Copyright,” Vice, Mar. 22, 2016.

[11] Williams v. Gaye, 885 F.3d 1150, 1183 (9th Cir. 2018)

[12] Brief of Amicus Curiae 123 Songwriters, Composers, Musicians, and Producers, Along With NSAI and SONA, in Support of Defendants for Panel Rehearing and Rehearing En Banc, Skidmore v. Led Zeppelin, Case: 16-56057, (filed Nov 5, 2018).

[13] Joseph M. Santiago, “The "Blurred Lines" of Copyright Law: Setting a New Standard for Copyright Infringement in Music,” 83 Brooklyn Law Review 289, 316 (Dec. 12, 2017).

[14] Nicole Lieberman, “Un-Blurring Substantial Similarity: Aesthetic Judgments and Romantic Authorship in Music Copyright Law,” 6 JIPEL 91, 137 (2016).

[15] Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 713 (2d Cir. 1992).