Skidmore v. Led Zeppelin: A Stairway to Re-trial
On September 28, 2018, a three-judge panel of the Ninth Circuit Court of Appeals vacated, in part, a 2016 judgment[1] in favor of the defendant, Led Zeppelin, and remanded for a new trial. The court found that the jury instructions given by the district court were “erroneous” and “prejudicial.”[2]
The claim in this case is that Led Zeppelin copied key portions of its timeless hit “Stairway to Heaven” from the song “Taurus,” which was written by Spirit band member Randy Wolfe.[3] Michael Skidmore, the trustee of Randy Wolfe’s estate, has been established as the owner of the copyright to Taurus.
During the trial, the instructions to the jury stated that certain “common musical elements” were not protected by the copyright. However, the jury was not instructed on the selection and arrangement of these elements.[4]
In the absence of such instruction, the circuit court ruled that the jury could have been misled into believing that a copyright protection would not be warranted, even if such components were used in combination with other elements in an original manner. This error in instruction was not harmless, as it undercut the testimony of the plaintiff’s expert witness.[5]
The Court of Appeals found there to be other parts of the language in the jury instructions to be similarly deficient, making them ambiguous and misleading. In addition, the Court of Appeals found that the lower court also failed to clarify that public domain elements, such as basic rock metal chords, could be considered “original” and are copyrightable if arranged and modified in a creative, original way.[6]
This was held to be prejudicial to Skidmore’s argument that the public domain elements, such as chromatic scales contained in the song “Taurus,” were modified in an original way, thus undermining the plaintiff’s core argument that “Taurus” and “Stairway to Heaven” were extrinsically substantially similar. The panel ruled that the district court erred in its formulation of the originality jury instructions. It also erred in withholding the selection and arrangement instructions.[7] A combination of these errors is likely to have misled the jury.
The panel also stated that, though the jury did not reach the question of copying, in a case similar to this, where there is “substantial evidence of access,” a jury instruction on the inverse ratio rule may be appropriate.[8]
Led Zeppelin has since filed for an en banc review of this decision. The RIAA[9] filed an amicus brief asking the en banc court to reconsider the ruling, saying that it threatens to “badly overprotect” copyrights.[10]
Footnotes
