Written by: Abbie Lueken
The 9th circuit has reversed a jury verdict in favor of Led Zeppelin for their alleged copyright infringement of the song “Taurus” by the band Spirit. According to copyright lawyer Rick Sanders, the reason for the reversal was the lack of a jury instruction that the parties agree should have been included.[1]
The jury instruction should have included a part about what to do with a work that is comprised of unprotectable elements.[2] According to the 9th circuit, “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”[3]
On the issue of selection and arrangement, Led Zeppelin argued that the only similarities between “Stairway to Heaven” and “Taurus” were elements that are unprotectable. The plaintiffs argued that even if the elements of the song are unprotectable, the selection and arrangement of them is original and “Stairway to Heaven” infringed on that original arrangement.[4]
The jury returned a verdict for Led Zeppelin, and Sanders believes the outcome would have been the same even with the jury instruction.[5] The jury found that the two songs “were not substantially similar under the extrinsic test.”[6] Copyright infringement requires copying and improper appropriation. The plaintiff attempted to prove access and similarity, but the jury ultimately found the proof to be insufficient. Given the complexity and subjectivity of copyright law, the lack of jury instruction seems to be reasonable grounds for a reversal, especially given the fact that both parties agreed that the instruction should have been included. However, the cost of litigating these cases makes the reversal a bit frustrating. It will be interesting to see what happens next in the case.
[1] Sanders, Rick. “Can’t Wish Away The Mistakes In The Original ‘Stairway to Heaven’ Verdict.” TechDirt. October 16, 2018. https://www.techdirt.com/articles/20181012/17372140824/cant-wish-away-mistakes-original-stairway-to-heaven-verdict.shtml.
[2] Id.
[3] Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).
[4] Sanders, supra note 1.
[5] Sanders, supra note 1.
[6] Skidmore v. Led Zeppelin, No. 2:15-cv-03462-RGK-AGR (C.D.C.A Sep. 28, 2018).
