By Thomas Long, J.D.
The U.S. Court of Appeals in San Francisco has vacated in part a district court’s judgment after a jury trial in favor of the defendants and remanded for a new trial in a copyright infringement suit alleging that Led Zeppelin and members of the band copied the classic rock hit "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. According to the Ninth Circuit, some of the instructions given to the jury by the district court were erroneous and prejudicial. First, 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. Second, the district court erred in its instructions on originality. The court also held that the district court properly limited the scope of the copyright to "Taurus" to its sheet music (the deposit copy), but it 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 (Skidmore v. Led Zeppelin, September 28, 2018, Paez, R.).
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.
Jury instructions. Skidmore argued that the district court erred by: (1) failing to give an instruction that selection and arrangement of otherwise unprotectable musical elements are protectable; (2) improperly instructing the jury on originality and protectable musical elements; and (3) failing to give an inverse ratio rule instruction. The appellate court held that the district court erred in the formulation of the originality jury instructions and in withholding a selection and arrangement instruction, and therefore vacated the district court’s judgment and remanded for a new trial.
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. In the Ninth Circuit’s view, it was error to fail to instruct the jury on this issue, and the error was prejudicial to Skidmore. The appellate court noted that the question concerned the extrinsic test for substantial similarity, which can be difficult to administer in the musical context. Even if notes or a scale, or other individual elements of a song, are not themselves protectable, music consists of a large array of elements, and a particular combination of those elements is protectable by copyright. Such a combination is protectable if the elements are sufficiently numerous and their selection and arrangement are sufficiently original that the combination amounts to an original work of authorship. The failure to provide a jury instruction to this effect was especially problematic in this case, the court said, because Skidmore’s expert witness had testified that there was extrinsic substantial similarity based on the combination of five elements, some of which were individually protectable and some of which were in the public domain.
The error was not harmless, the court held. Both sides had recognized in their proposed jury instructions that an instruction about selection and arrangement was appropriate and necessary given the basis for Skidmore’s infringement claim. The defendants argued that any error was harmless because the jury was likely to have reached the same verdict even with the requested instruction. However, in the appellate court’s view, the lack of the instruction "severely undermined" Skidmore’s argument for extrinsic similarity, and the jury did in fact find that crucial aspect of Skidmore’s case to be lacking. None of the instructions given to the jury made reference to the relevant legal principle.
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." The Ninth Circuit concluded that the district court erred in its instructions on originality.
Jury Instruction No. 16 was contrary to Ninth Circuit precedent holding that a limited number of notes can be protected by copyright. Jury Instruction No. 16 could have led the jury to believe that even if a series of three notes or a descending chromatic scale were used in combination with other elements in an original manner, it would not warrant copyright protection. This error undercut testimony by Skidmore’s expert that Led Zeppelin copied a chromatic scale that had been used in an original manner, the court said.
Jury Instruction No. 20 omitted parts of the test for originality and added misleading language. In the Ninth Circuit, originality required that a work not be copied and that it be produced with a minimal degree of creativity. The original part of a work need not be new or novel, as long as it was not copied, the court explained. 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 instructions undermined Skidmore’s expert’s testimony that "Taurus" and "Stairway to Heaven" were similar based on a combination of otherwise unprotectable elements. Therefore, the instructions were prejudicial.
Inverse ratio rule. The "inverse ratio rule" provided that a lower standard of proof of substantial similarity was required when a high degree of access was shown. The court explained that this rule assists a plaintiff only in proving copying, not in proving unlawful appropriation and the showing of substantial similarity necessary to prove unlawful appropriation does not vary with the degree of access. An inverse ratio instruction could have helped Skidmore establish copying, but the verdict form made it clear that the jury did not decide Led Zeppelin had copied parts of "Taurus," but ended its deliberations after deciding that the two songs were not substantially similar under the extrinsic test, which went to the question of unlawful appropriation. Therefore, the inverse ratio rule was not relevant, and any error in not including it was harmless, the appellate court held. However, on retrial an inverse ratio instruction could be appropriate, the court cautioned, because Skidmore was required to establish actual copying.
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 affirmed the district court’s holding on this question.
Because the copyright of "Taurus" was registered in 1967, the 1909 Act applied. Under the 1909 Act, an unpublished work was protected by state common law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme. A work could receive federal protection through publication, or through registration and submission of a deposit copy. Under the 1909 Act, "publication" of a musical composition only took place if the sheet music were published; distribution of sound recordings was not sufficient. Nor were sound recordings accepted as deposit copies under the 1909 Act. According to the Ninth Circuit, the deposit copy was not merely archival but, for unpublished works under the 1909 Act, defined the scope of the work’s copyright. Nothing in the 1909 Act clearly stated that copyrighted works could be anything other than published sheet music or the musical composition transcribed in the deposit copy.
"Because the 1909 Act makes the existence of copyright dependent on the deposit copy, it makes sense that the deposit copy also defines the scope of the copyright," said the court.
Recordings as proof of access. Although the error was harmless because the jury ultimately determined that Skidmore established that Jimmy Page (the principal composer of "Stairway") had access to Wolfe’s composition, the Ninth Circuit concluded that the district court abused its discretion by not allowing the sound recordings of "Taurus" to be played to prove access. The appellate court addressed the issue because it was likely to arise again at retrial. The district court excluded the sound recordings under Federal Rule of Evidence 403, finding that their probative value was substantially outweighed by the danger of unfair prejudice. This determination was an abuse of discretion, in the Ninth Circuit’s view. The district court acknowledged that the recordings were relevant to whether Page had access to "Taurus," but the district court was concerned that allowing the jury to hear the recordings would confuse them. The district court permitted Skidmore to play the recordings to Page out of the jury’s presence, and then Page was questioned about them in front of the jury. This allowed the jury to draw inferences from Page’s demeanor, but allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions. The appellate court further explained that the district court could have instructed the jury that the recordings were limited to the issue of access and that they were not to be used to judge substantial similarity.
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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