By Thomas Long, J.D.
Jury instructions not erroneous or prejudicial to plaintiff; court dumps "inverse ratio rule" providing for lower standard of proof of substantial similarity when a high degree of access is shown.
After an en banc rehearing, the U.S. Court of Appeals in San Francisco has affirmed a district court’s judgment after a jury trial in favor of the defendants in a copyright infringement suit alleging that classic rock band Led Zeppelin and members of the band copied a portion of the hit song "Stairway to Heaven" from the song "Taurus," written by Spirit band member Randy Wolfe. The jury had found that plaintiff Michael Skidmore—as trustee of a trust managing the late Wolfe’s assets—owned the copyright to "Taurus" and that the defendants—including Led Zeppelin members Robert Plant and Jimmy Page—had access to Skidmore’s composition, but it determined that the two songs were not substantially similar under the extrinsic test. In October 2018, a three-judge panel of the appellate court vacated the district court’s judgment in part after it determined that some of the instructions given to the jury were erroneous and prejudicial. The three-judge panel had determined that it was error for the district court to fail to instruct the jury that the selection and arrangement of unprotectable musical elements were protectable. However, the en banc court held that there was no plain error because the instructions that were given fairly and adequately covered Skidmore’s argument regarding extrinsic similarity of the works. Contrary to the earlier panel decision, the en banc court also held that 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 themselves, but that an original work could incorporate such elements. Finally, the court held that Skidmore forfeited his argument that the jury should have been given an instruction on protectability of the "selection and arrangement" of musical elements, and that in any case the omission of this instruction did not prejudice Skidmore (Skidmore v. Led Zeppelin, March 9, 2020, McKeown, M.).
Skidmore filed suit against Led Zeppelin, Page, Plant, remaining surviving band member John Paul Jones, Super Hype Publishing, and the Warner Music Group Corporation as parent of Warner/Chappell Music, Inc., Atlantic Recording Corporation, and Rhino Entertainment Co., asserting that portions of "Stairway" were copied from "Taurus." In May 2015, the federal district court in Philadelphia transferred the case to the U.S. District Court for the Central District of California.
In April 2016, the federal district court in Los Angeles held that the plaintiff failed to proffer evidence of a striking similarity between "Stairway to Heaven" and "Taurus," but concluded that a triable issue of fact was present regarding "access" and "substantial similarity." With respect to access, the plaintiff presented evidence that both bands had performed in succession and had interacted at two music festivals between 1968 and the release of "Stairway to Heaven" in 1971. In addition, the plaintiff submitted evidence that Spirit would often perform "Taurus" because the song was Wolfe’s favorite. Further, the plaintiff proffered evidence that Led Zeppelin had played songs that were on the same album as Taurus. Finally, the plaintiff proffered impeachment evidence to counter Page’s declaration that he never saw a performance by Spirit. With respect to substantial similarity, the court found that the plaintiff showed "enough similar protectable expression" that the issue of substantial similarity should proceed to the jury. According to the court, once the unprotected performance elements were stripped away, the only remaining similarity was the core structure (the "repeated A-minor descending chromatic bass line") of the first two minutes of each song.
The jury, however, concluded that original elements in the two songs were not substantially similar. Skidmore appealed the court’s denial of its post-verdict motion for judgment as a matter of law. In its October 2018 opinion, the Ninth Circuit held that in an instruction relating to the extrinsic test, the district court failed to instruct the jury that the selection and arrangement of otherwise unprotectable individual musical elements could be protectable. The district court also erred, said the panel, in its instructions on originality. While the district court properly limited the scope of the copyright to "Taurus" to its sheet music (the deposit copy), the panel held that the jury should have been allowed to observe Page listening to recordings of "Taurus" in order to help them assess whether Page had access to the work. The Ninth Circuit granted hearing en banc in June 2019.
Scope of copyright—deposit copy. Skidmore challenged the district court’s determination that for unpublished works under the Copyright Act of 1909 ("1909 Act"), the scope of the copyright was defined by the deposit copy. The Ninth Circuit held that the 1909 Copyright Act, which does not protect sound recordings, rather than the 1976 Copyright Act, controlled its analysis because the copyright at issue was for the unpublished musical composition of "Taurus," which was registered in 1967. Therefore, the district court correctly decided that scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of "Taurus" consisted of only one page of music. Accordingly, it was not error for the district court to decline plaintiff’s request to play sound recordings of the "Taurus" performance that contained further embellishments or to admit the recordings on the issue of substantial similarity.
Although Skidmore suggested that the copyright extends beyond the sheet music—and that the deposit copy is somehow archival in nature and more of a reference point than a definitive filing—this approach ignores the text of the statute and the purpose of the deposit, the Ninth Circuit said. The purpose of the deposit, the court explained, is to make a record of the claimed copyright, provide notice to third parties, and prevent confusion about the scope of the copyright. The court rejected Skidmore’s argument that the deposit copy may be supplemented, holding that the deposit copy defines the "four corners" of the "Taurus" copyright.
Elements of infringement. The court next turned to the substantive elements of copyright infringement. Skidmore was required to show: (1) that he owns a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work. Skidmore’s ownership of a valid copyright was not at issue on appeal. The second prong of the infringement analysis contains two separate components: "copying" and "unlawful appropriation." In the absence of direct evidence of copying, which is the case here, the plaintiff can prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying. The appellate court noted that the hallmark of "unlawful appropriation" is that the works share substantial similarities. The Ninth Circuit used a two-part test to determine whether works are substantially similar, consisting of an extrinsic test (objective) and an intrinsic test (subjective, usually by the jury).
Copying—proof of access. At trial, Skidmore contended that Led Zeppelin members heard either performances or recordings of "Taurus" before creating "Stairway to Heaven," and thus had access. To prove that point to the jury, Skidmore wanted to play several recordings of "Taurus" during the testimony of Jimmy Page, claiming that observing Page listening to the recordings would have enabled the jury to evaluate his demeanor with respect to access. The district court decided that this approach, while potentially relevant, was too prejudicial because it risked confusing access with substantial similarity. The court instead permitted Skidmore’s counsel to play the recordings for Page outside the presence of the jury and then question him about the recordings in front of the jury.
The appellate court found no error by the district court here. "Skidmore’s position is a curious one and defies common sense," the appellate court said. "There would have been very little, if any, probative value in watching Page’s reaction to listening to Taurus at the trial in 2016 to prove access to the song half a century ago." Moreover, the question was moot because Page had "candidly admitted" at trial to owning a copy of the album that contained "Taurus," although he denied having any knowledge of the song itself. This was sufficient evidence for the jury to find that the defendants had access to "Taurus." The jury then determined that the works were not extrinsically similar and therefore did not have to reach the intrinsic test.
Jury instructions. Skidmore argued that the district court erred by: (1) failing to give an inverse ratio rule instruction; (2) improperly instructing the jury on originality and protectable musical elements; and (3) failing to give an instruction that selection and arrangement of otherwise unprotectable musical elements are protectable.
Inverse ratio rule. Joining the majority of circuits, the en banc court rejected the inverse ratio rule, which provided that a lower standard of proof of substantial similarity is required when a high degree of access is shown. The en banc court overruled circuit precedent to the contrary, reasoning that the rule "defies logic, and creates uncertainty for the courts and the parties." Therefore, the district court did not err by choosing not to give the jury Skidmore’s requested instruction on the rule.
Originality. The en banc court held that the district court properly instructed the jury on originality. Skidmore argued that the district court erred in two ways in its formulations of jury instructions on the question of originality: (1) Skidmore contended that Jury Instruction No. 16 erroneously stated that copyright did not protect "chromatic scales, arpeggios or short sequences of three notes"; and (2) Skidmore argued 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," and should have included the admonition from the Ninth Circuit Model Jury Instruction 17.13 that "[i]n copyright law, the ‘original’ part of a work need not be new or novel."
In the earlier opinion, the panel held that Jury Instruction No. 16 was contrary to Ninth Circuit precedent holding that a limited number of notes can be protected by copyright. However, the en banc court said that 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. "We have never extended copyright protection to just a few notes," the en banc court said. "Instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression in a song."
With respect to Jury Instruction No. 20, the three-judge panel had held that the district court’s instruction misleadingly suggested that public domain elements, such as basic musical structures, were not copyrightable even when they were arranged or modified in a creative, original way. The en banc court disagreed, explaining that a passage in the instruction stating that "any element from prior works or the public domain are not considered original parts and not protected by copyright" was black-letter law. Moreover, the instruction also explained that an "original work may include or incorporate elements taken from prior works or works from the public domain," which correctly instructed the jury on the law. Reviewing the jury instructions as a whole, the Ninth Circuit concluded that the originality instructions were sound and were not prejudicial to Skidmore.
Arrangement of musical elements. Both sides had requested a version of an instruction informing the jury that the selection and arrangement of unprotectable musical elements were protectable, but the district court did not include either requested instruction. The three-judge panel held that it was error to fail to instruct the jury on this issue, and the error was prejudicial to Skidmore, but the en banc court held that the district court did not commit plain error. First, Skidmore did not present a selection and arrangement theory at trial. Second, the en banc court held that, even though the district court did not instruct the jury on selection and arrangement, its instructions, as a whole, fairly and adequately covered Skidmore’s argument for extrinsic similarity between Taurus and Stairway to Heaven.
"This case involved a lengthy trial, and there is little reason to have another trial that Skidmore cannot win," the en banc court said.
Concurring opinion. Circuit Judge Paul J. Watford wrote separately to state that he joined the court’s opinion, with the exception of the portion on Skidmore’s forfeit of a selection-and-arrangement instruction, because he saw no reason to decide whether plaintiff adequately preserved his request for a selection-and-arrangement instruction when, even if such an instruction had been given, no reasonable jury could have found infringement.
Concurring and dissenting opinion. Concurring in part and dissenting in part, Circuit Judge Sandra Segal Ikuta, joined by Circuit Judge Carlos Bea, wrote that she dissented from the portion of the court’s opinion on the selection-and-arrangement instruction because, without the requested instruction, the jury was deprived of the opportunity to consider Skidmore’s central theory of the case, and the instructions given to the jury were misleading.
This case is No. 16-56057.
Attorneys: Francis Malofiy and Alfred Joseph Fluehr (Francis Alexander LLC) for Michael Skidmore. Peter J. Anderson (Law Offices of Peter J. Anderson) and Helene Marian Freeman (Phillips Nizer LLP) for Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, Inc., Warner Music Group Corp., Warner Chappell Music, Inc., Atlantic Recording Corp., and Rhino Entertainment Co.
Companies: Led Zeppelin; Super Hype Publishing, Inc.; Warner Music Group Corp.; Warner Chappell Music, Inc.; Atlantic Recording Corp.; Rhino Entertainment Co.
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