“And It Makes Me Wonder:” What Will Happen in “Stairway to Heaven,” Part II?
Led Zeppelin’s catalog has been cited many times for plagiarism and copyright. Songs that have been cited include “Whole Lotta Love” (Willie Dixon), “Babe, I’m Gonna Leave You” (Anne Bredon), and “Dazed and Confused” (Jake Holmes).1 The most famous suit thus far has been the “Stairway to Heaven” suit brought by the estate of Randy Craig in 2014.2
Craig was a member of Spirit, which released “Taurus” years before “Stairway to Heaven” was released, and his estate claimed Led Zeppelin copied the song’s intro.3 Specifically, the estate argues that Led Zeppelin stole the introduction chord progression, while Led Zeppelin has countered that the descending four-chord progression was common and not subject to copyright protection.4 Because “Taurus” was released in 1967, it is not subject to the 1972 changes in copyright law, and thus only submitted sheet music could be used as evidence (rather than audio recordings).5
In the first trial, the “judge ruled that copyrights of musical compositions prior to 1972 were only protected as sheet music.”6 However, a three-judge panel in the Ninth Circuit declared it a mistake that recordings of “Taurus” were not played.7 Additionally, the Ninth Circuit ruled that the previous judge provided the jury with erroneous instructions and held en banc hearings during the week of September 23, 2019.8 They believe that a verdict in favor of Craig will threaten the creativity of the music industry as a whole and that the similarities were not original enough to warrant protection.9
In a more shocking turn, the Trump administration has weighed in on the case. The Department of Justice, in their supporting brief, claims that since the sheet music does not have identical sections, the previous ruling was correct.10 The Department of Justice wrote that “[t]here should be no serious dispute that the passages of ‘Stairway to Heaven’ and ‘Taurus’ that are at issue here are not virtually identical” and that “[a]t a minimum, the notes and rhythm are not all, or even mostly, the same.”11.
The case has numerous implications for the music world. There have been inquiries into expanding copyright protection.12 Additionally, since the Robin Thicke-Pharrel-Marvin Gaye lawsuit over “Blurred Lines,” rhythm and “feel” have become acceptable claims in copyright suits, which quite literally blur the lines of what is copying and what is not.13 Further, their brief recognizes another issue: that artists will fear that the “(very common) use of any ‘descending chromatic scales, arpeggios or short sequences of three notes,’ or any elements in the ‘public domain,’ could form the basis of an infringement action.”14 Finally, the brief recognizes that this would only be eligible for “thin copyright protection” and “no reasonable jury could conclude that the passages are virtually identical.”15.
Marc Hogan, What Led Zeppelin’s “Stairway” Trial Says About Copyright’s Increasingly Blurred Lines, The Pitchfork: The Pitch (June 7, 2016), https://pitchfork.com/thepitch/1176-what-led-zeppelins-stairway-trial-says-about-copyrights-increasingly-blurred-lines/. [https://perma.cc/F638-42QQ]↩
Daniel Sanchez, 123 Artists File an Amicus Brief in Led Zeppelin’s Closely Watched ‘Stairway to Heaven’ Lawsuit, Digital Music News (Aug. 2, 2019), https://www.digitalmusicnews.com/2019/08/02/led-zeppelin-amicus-brief/.↩
Erica Banas, Led Zeppelin ‘Stairway’ Lawsuit: Justice Department Files Brief in Support of Zeppelin, 105.7 WROR (Aug. 19, 2019), https://wror.com/2019/08/19/led-zeppelin-stairway-lawsuit-justice-department-brief/. [https://perma.cc/TEM8-NQNH]↩
Andrew Magnotta, Justice Department Takes Led Zeppelin’s Side in ‘Stairway to Heaven’ Case, iHeartRadio, (Aug. 19, 2019), https://www.iheart.com/content/2019-08-19-justice-department-takes-led-zeppelins-side-in-stairway-to-heaven-case/. [https://perma.cc/8AAB-M9XT]↩
Sam Sodomsky, Led Zeppelin “Stairway to Heaven” Lawsuit to Be Reheard, The Pitchfork (June 10, 2019), https://pitchfork.com/news/led-zeppelin-stairway-to-heaven-lawsuit-to-be-reheard/.[https://perma.cc/6C8C-JXC6][/footnote] Since then, 123 people and entities, including Sean Lennon and Korn, have filed an amicus brief with the Ninth Circuit for their “significant interest” in the outcome of the case.[footnote]Sanchez, supra note 2.↩
Magnotta, supra note 6.↩
Hogan, supra note 1.↩
Banas, supra note 4.↩
Blake Brittain, Led Zeppelin Backed by U.S. Government Brief in ‘Stairway’ Case, Bloomberg Law, (Aug. 16, 2019), https://news.bloomberglaw.com/ip-law/led-zeppelin-backed-by-u-s-government-brief-in-stairway-case.[ https://perma.cc/ZE4J-5N4S][/footnote]
Regardless of the outcome, why don’t you play judge and jury for yourself and take a listen?[footnote]Rainson Zeppelin, Taurus – Spirit / Stairway to Heaven, YouTube (Sept. 24, 2014), https://www.youtube.com/watch?v=ye7hCIWwhGE.[https://perma.cc/E29G-YYU7]↩