Led Zeppelin on March 9 won a case centered around whether pieces of the rock classic “Stairway to Heaven” were stolen from relatively unknown band, Spirit, whose song “Taurus” has similarities to the classic hit. Led Zeppelin had toured with Spirit early in their career as an opening act. The 9th Circuit Court of Appeals affirmed a previous trial court decision of no infringement.
As the Led Zeppelin case demonstrates, these cases can bubble up long after a song is written, they can be well covered in the media, they can be technical and the burden of proof lies with the plaintiff. Some cases go to jury trials, some go to judges and, in all cases, expert witnesses and specialists across the music industry will be asked and depended on for support of either side.
Days before the 9th Circuit handed down its decision regarding the rock classic, attorneys who had represented parties on both sides of the dispute discussed music copyright at the University of Colorado’s Silicon Flatirons center.
The March 5 event, “Lay Listeners, Sheet Music, & Chord Progressions: The Future of Copyright Infringement Analysis in Music,” also brought together other musical copyright lawyers, musicologists and experts who have worked on cases involving Marvin Gaye, Katy Perry, Pharrell Williams and Megan Thee Stallion.
Central aspects of the event involved the Katy Perry “Dark Horse” case and the Pharrell Williams “Blurred Lines” case. Lewis & Clark Law School professor Lydia Loren began a session focused on copyright law by discussing the burden of proof that is placed on plaintiffs in such lawsuits. What is needed for proof of copyright infringement is not labeled in the Copyright Act.
However, the Supreme Court, in the prima facie, requires two things: that a plaintiff show ownership of a valid copyright and copying of constituent elements of the work for it to be original.
The first part must show ownership and validity, and the second part must show that the copying of the work was improper, she explained. The burden of proof has been placed on plaintiff, and the defendant will offer defenses.
Direct evidence is rare, and, instead, judges and juries rely on circumstantial evidence of access and substantial similarity to infer and conclude that it “must have been the case” in terms of copying another piece of music, she added. Some other explanations for similarity include how songs in a certain genre “sound” or how songs sound in a certain era or geographic area. The reason those rebuttals are accepted arguments is that independent creation is a complete defense according to the courts.
Proof of “illicit copying” is necessary since copyright law does not prohibit all copying, but the 9th Circuit has said that enough of the song must be copied from the plaintiff’s ideas or concepts to make the works substantially similar.
Proof of “illicit copying” is necessary since the copyright law does not prohibit all copying, but the 9th Circuit has said that enough of the song must be copied of the plaintiff’s ideas or concepts to make the works substantially similar.
Francis Alexander attorney Francis Malofiy represented the estate of Randy Wolfe in the lawsuit challenging Led Zeppelin’s “Stairway to Heaven” copyright, a dispute that centered on the question of just how much of the two songs in question were similar.
In the Led Zeppelin case, if you hear the two songs played next to each other, only a descending baseline was similar in the actual song, and a jury sided with Led Zeppelin, finding that wasn’t enough of a similarity to prove copyright infringement. Freundlich and Malofiy disagreed on if the copyrights for music should be treated the same as those for such creations such as books, art or other forms.
“The whole copyright litigation is so skewed in that nobody really understands the reality of how hard it is to bring a case to trial,” Malofiy said. “Everyone’s acting and talking in this scholarly way, but who has actually taken a case to trial? Very, very, very few people.”
He advised the audience to take these cases and put them in the perspective of the “haves and have nots.” He gave examples on how the fear of the “floodgates” of copyright cases being opened despite the small number of those reaching the courts. The disparity in income between songwriters, whom he described as having nothing and making that a year, compared with recording companies and distributors that make billions of dollars every year.
Kenneth Freundlich, who represented Led Zeppelin, said he had been on both sides of musical copyright disputes, including cases involving Katie Perry, Pharrell Williams and Led Zeppelin. Freundlich felt it was not the creators versus the industry, and it was songwriters themselves who are alarmed by these cases. He said in his experience there were songwriters making anything from $0-$1 million who were alarmed by these three cases and their verdicts, since they seemed “musicologically incorrect.”
He is currently involved with a group of musicologists who feel that placing such a case before a jury leads to it being focused less on the music than other factors.
In the “Blurred Lines” case, involving Pharrell Williams and Robin Thicke’s 2013 hit “Blurred Lines,” the Marvin Gaye estate alleged that pieces of Gaye’s song “Got to Give It Up” were stolen and used in “Blurred Lines.” Thicke and Williams had to pay over $5 million in a settlement with the Gaye estate. The court determined there was infringement, though not willful infringement.
For the Perry case, the jury found infringement and $3 million worth of damages. In that case, only one aspect — a set of notes — was being discussed. In the end, a jury ruled that Perry copied an unknown Christian rapper’s song when developing key aspects for the hit song “Dark Horse.”
Richard Busch, a partner at King & Ballow who represented the Gaye estate, said there was intense disagreement in the musicology world. One musicologist for the defense found there were 15 elements that were similar between the two songs.
“The question becomes what do you do with that — do we have one person picked by the judge make a decision? No, because that’s not the way it works,” Busch said. “When you have differences of opinion, the Constitution, the 7th Amendment, says a jury will make a decision.”
In fact, one line of a composition can be important, he said. He explained how in the past he had won a case where only one word was a deciding factor, which was affirmed by the 6th Judicial Circuit.
In fact, one line of a composition can be important, he said. He explained how in the past he had won a case where only one word was a deciding factor, which was affirmed by the 6th Judicial Circuit.
The test is whether the piece is quantitatively or qualitatively important, he added. Small uses of songs that are quite recognizable if copied should be copyright infringement, he said. All kinds of things make up a song, he said.
But, many of these debates are sure to continue about infringement on musical copyright, in the words of Malofiy, “There’s no formula to find out what copyright infringement is, and it makes it so hard to get in front of the jury.”
— Avery Martinez