October 3, 2019
The U.S. Ninth Circuit Court of Appeals recently heard arguments in a longstanding copyright dispute over the authorship of Led Zeppelin’s megahit, “Stairway to Heaven”.
The central issue in the case concerns who wrote the song’s famous acoustic opening passage – Jimmy Page and Robert Plant of Led Zeppelin, or Randy Wolfe, a.k.a. “Randy California”, the lead singer and guitarist of the psychedelic band Spirit.
The trustee of Randy Wolfe’s estate sued Led Zeppelin in 2014, arguing that “Stairway to Heaven” copied elements of the Spirit song “Taurus”. In 2016, a jury ruled in favour of Led Zeppelin, finding that the two songs were not substantially similar. However, the U.S. Ninth Circuit Court of Appeals threw that ruling out in June of this year, finding that the instructions provided to the jury were insufficient.
On Monday, the Ninth Circuit proceeded to hear the case en banc or as a full panel, which is rare in U.S. copyright cases. While some commentators speculated that the decision to hear the case en banc indicated that the court might “take a big swing here”, spectators at the hearing noted that the judges consistently challenged the Wolfe estate’s attorney when he argued that a new trial was justified.
The U.S. Department of Justice (“DOJ”) took the unusual step of filing an amicus brief supporting Led Zeppelin in the dispute, and argued that the similarities between “Stairway to Heaven” and “Taurus” were limited to “the core, repeated A-minor descending chromatic bass line structure that marks the first two minutes of each song”. The DOJ maintained that Wolfe’s original contribution to the song consisted only of an arrangement of a small number of conventional elements, entitling the estate to, at most, “thin” or limited copyright protection.
At the 2016 trial, counsel for Led Zeppelin argued that the chord progressions and descending chromatic scale shared by “Stairway to Heaven” and “Taurus” have appeared in many different pieces of music over the past 300 years. Further, Mr. Page testified that “Stairway to Heaven” is reminiscent of many other songs, including the “Mary Poppins” classic “Chim Chim Cher-ee”.
The issue of whether the use and placement of basic musical elements justifies copyright protection has been an issue in a variety of recent copyright cases, including cases relating to such songs as Robin Thicke’s “Blurred Lines” and Katy Perry’s “Dark Horse”. The eventual decision in the “Stairway to Heaven” case may provide some clarity on what musical arrangements are subject to copyright protection, and what musical elements are available for artists to use freely.
Authors: Sarah Stothart and Duncan Lurie