Supreme Court Denies the Spirit Within Led Zeppelin
As many classic rock lovers know, “Stairway to Heaven” has long been regarded as one of the greatest songs of all time. Its fans can close their eyes and hear the legendary Jimmy Page strumming each beautiful note. What they may not know is that these notes are almost identical to those of another song, “Taurus” by Spirit, which has sparked a six-year legal controversy. Most recently, the dispute has led to a petition for a writ of certiorari to the Supreme Court, asking for a review of the Ninth Circuit ruling which held that Led Zeppelin did not infringe on copyright. Although the writ was denied on October 5, the dispute has left one question ringing in our minds: are Led Zeppelin musical pioneers… or plagiarists? [1]
Since Led Zeppelin released “Stairway to Heaven” in 1971,[2] the song has won numerous awards and has been inducted into the Grammy Hall of Fame.[3] The song lived in fame and adoration for 43 years, until it was learned that it may actually be a derivative of the song “Taurus” by Spirit, released 3 years prior in 1968.[4] In 2014, the estate of Randy Wolfe, the late guitarist and writer of “Taurus”, realized the great similarities between the two songs.[5] Michael Skidmore, as trustee for the Randy Craig Wolfe Trust, brought a suit alleging copyright infringement and violation of the right of attribution.[6]
In proving copyright infringement, courts use extrinsic and intrinsic tests to decide if works are substantially similar.[7] However, these tests are only applicable to the elements of the work protected by copyright.[8] The extrinsic test breaks down the works into their basic elements, and the isolated elements are compared, i.e. comparing only the guitar notes.[9] The intrinsic test is less technical and compares both works as a whole to determine if the reasonable person would find them substantially similar.[10]
The extrinsic test was used in a jury trial in the United States District Court for the Central District of California, and in 2016 the verdict was held in favor of the defendants, Led Zeppelin members Robert Plant and Jimmy Page, as well as major music companies.[11] This decision was reviewed in a 2018 appeal to the Ninth Circuit, which also ruled in favor of the defendants.[12] Despite these rulings, the lawyer representing Wolfe’s estate, Francis Malofiy, feels that Led Zeppelin “won on a technicality.”[13] Some feel that he may be right.[14]
The “technicality” lies in the fact that both works were protected under the 1909 Copyright Act, which applies only to sheet music registered at the U.S. Copyright Office..[15] Therefore, the jury found that the songs were not substantially similar and ruled in favor of Led Zeppelin[16] without hearing any recordings of either song. The court refused to enter the recordings as evidence for the extrinsic test because they are not protected by copyright, according to the 1909 version of the law,[17] and instead had live musicians play the sheet music. [18] Malifoy argues that this was misleading to the jury because guitarist Jimmy Page doesn’t read sheet music, and the case would have come out differently if the works fell under the 1976 Copyright Act, which includes sound recordings.[19] Skidmore further claimed that since the deposit copy of “Taurus” is only one page of sheet music, a recording would show the embellishments and similarities not heard in the court musicians’ performances. ,[20]
On August 6, 2020, a writ of certiorari was submitted to the Supreme Court.[21] The writ explains, “If copyright protection under the 1909 Act is limited to deposit sheet music, then virtually all songs composed before 1978 will lose almost all copyright protection because the lead sheets submitted for them were uniformly incomplete.”[22] The writ alleges that “not one copyright trial was limited or controlled by the deposit, which was usually an incomplete outline of the song,” and holding that the 1909 Copyright Act only protects sheet music, “will likely divest hundreds of thousands of songs of copyright protection.”[23] The writ further argues that the decision contradicts binding Supreme Court precedent by “redefining” originality for the purposes of copyright infringement,[24] and giving additional instruction unnecessary to the extrinsic test.[25]
Although many who have listened to the two songs have observed their similarities , it should be noted that Led Zeppelin claims this chord progression may have been around for centuries.[26] It should also be noted that this is not the first time Led Zeppelin has been accused of heavily appropriating, or downright plagiarizing, another artist.[27] Even so, the Supreme Court denied to take the case, which was not necessarily unexpected. It is reported that in a typical year, lawyers file almost 8,000 petitions for a writ of certiorari, but usually fewer than 80 are granted.[28] The petitioners hoped SCOTUS would take the case in order to calm the recent uproar in the music industry, explaining that since the Ninth Circuit ruling, major copyright decisions have “dramatically” favored defendants, and Hollywood has been given “exactly what it has always wanted: a copyright test which it cannot lose.”[29]
Despite the writ’s denial, Malifoy feels their ultimate goal was accomplished. He explained, “This lawsuit was about giving credit where credit was due… Today, the world knows that: 1.) Randy (Wolfe) wrote the introduction to Stairway to Heaven; 2.) Led Zeppelin are the greatest art thieves of all time; and 3.) Courts are as imperfect as rock stars.”[30]
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