Rest easy, Led Zeppelin fans. Because the band got a bad rap, it beat the rap.
While the rest of the nation was wrestling with the fallout of the dreaded coronavirus, federal appeals court judges in California last month were dealing with another alleged contagion — music copyright infringement.
But in ruling that Led Zeppelin didn’t steal the opening bars for its 1971 hit song “Stairway to Heaven,” the court not only cleared it of allegations of copying a song — “Taurus” — released a few years earlier but did so in a way that legal scholars suggest will make future copyright-infringement lawsuits more difficult to prove.
In an en banc ruling, the 9th Circuit Court of Appeals voted 9-2 to reinstate a jury’s 2016 ruling that Led Zeppelin did not violate the “Taurus” copyright.
Here’s how one legal analyst, Daniel A. Schnapp, characterized the issue.
“Among other aspects of the decision, the court examined the opening strains of ‘Stairway to Heaven’ to determine whether the usage of particular musical notes, arranged in a particular pattern, were protectable copyright elements or whether or not such sequences of notes belong to all musical artists,” he said.
The 9th Circuit held its en banc review after a three-judge panel of the same court in 2018 overturned the jury’s verdict based on what it considered to be improper jury instructions given by trial Judge R. Gary Klausner.
As if often the case when contested issues are subjected to legal tests — in this case, copyright law — jurors heard conflicting testimony from musical experts and listened to musicians play excerpts from the two songs.
In the end, the appeals court majority concluded the songs were insufficiently similar to find a copyright violation.
“We have never extended copyright protection to just a few notes,” Justice M. Margaret McKeown said.
Copyright disputes have become more common since a 2016 decision by the same court affirming a copyright violation. In that case, songwriters were ordered to pay $5.3 million for copying elements of the 1977 Marvin Gaye hit “Got To Give It Up.”
If they had been successful, the plaintiffs in the Led Zeppelin case stood to hit the jackpot because “Stairway to Heaven” generated an estimated $500 million in profits.
The dispute between Led Zeppelin’s “Stairway to Heaven” and Spirit’s much more obscure “Taurus” generated considerable controversy, conversation and commentary, including online, where musicians have compared and contrasted the two songs.
Veteran musician Thomas J. Rozdilsky — known as TJR — said the songs “have a lot of similarities,” including “A-minor chords with a descending progression.”
But he said that’s not unusual, citing the George Harrison-penned Beatles hit “While My Guitar Gentle Weeps” and another Led Zeppelin song, “Babe, I’m Going to Leave You.”
“They became different songs, but they use similar chord patterns,” he said.
What makes the 9th Circuit’s decision especially significant is that it set a aside a previous legal test that encouraged copyright lawsuits.
It was called the “Kozinski rule,” named after retired appeals court justice Alex Kozinski.
Kozinski’s “inverse ratio” rule held that “where evidence of access to an original musical work is strong, the burden of proof to show similarities between the original work and the allegedly infringing work are mitigated, in order to give rise to an inference of copying.”
In layman’s terms, the rule meant that the “more access a plaintiff could show, the less similarity was required to establish infringement.”
The appeals court backed away from that test because, as noted by McKeown, in “our digitally interconnected world,” the concept of access is “increasingly diluted.”
Jim Dey is a staff writer for The News-Gazette. His email is email@example.com.