Written By: Isaac Arreola
Stairway to Heaven has been acclaimed as one of the most iconic pieces of rock-and-roll history. [1] The opening guitar piece has long been recognized as the work of Led Zeppelin guitarist, Jimmy Page. [2] However, there has been a legal dispute over who actually wrote the famous guitar introduction. [3]
Taurus was written by the Los Angeles based rock band, Spirit, and was released on the band’s debut album in 1968. [4] Randy Wolfe, commonly known as Randy California, was the guitarist and songwriter for the band. [5] Wolfe’s passing in 1997 did not discourage legal action from arising 20 years later.
On May 31, 2014, Michael Skidmore, the trustee of Randy Wolfe, filed a copyright suit against Led Zeppelin, the individual members of the band, the band’s record label, and the record labels associated with the band. [6] Skidmore claimed Led Zeppelin’s song, Stairway to Heaven, infringed on Wolfe’s song, Taurus. [7]
Aside from the dispute over whether the songs really sound alike, the statute of limitations was the real issue. Generally, there is a three-year statute of limitations for copyright cases. [8] Why is Skidmore’s claim not barred if the alleged infringement took place decades ago? When a defendant “commits successive violations, the statute of limitations runs separately from each violation.” [9] Each infringing act will have its own statute of limitations, allowing a party to claim copyright infringement years after the initial infringement. Skidmore can claim copyright infringement every time Led Zeppelin issues a new release. [10]
On October 8, 2014, Skidmore filed his first amended complaint with two claims: (1) Stairway to Heaven infringes the song, Taurus, and (2) a violation of the right of attribution. [11] Zeppelin moved for summary judgement on both claims. [12] On April 8, 2016, the United States District Court for the Central District of California granted Zeppelin’s summary judgment motion on the right of attribution claim but denied the summary judgment motion on the copyright infringement claim due to “sufficient evidence” to proceed to trial. [13] On June 23, 2016, a jury returned a verdict in favor of Zeppelin, finding Zeppelin “had not infringed Wolfe’s copyright in the song, Taurus.” [14]
Skidmore appealed. [15] He argued the district court erred in its jury instruction and abused its discretion by not allowing the defense to play the disputed song to a jury. [16] The song was played to Led Zeppelin guitarist, Jimmy Page, outside the presence of the jury; Page was subsequently questioned about the song in front of the jury. [17] In light of Skidmore’s argument, the Court of Appeals found the district court erred in its judgment. A rehearing en banc was subsequently granted by the Ninth Circuit on June 10, 2019. [18]
The pending rehearing of the case leaves the music world wondering how far this case will go. In a similar case decided in 2018, artists Robin Thicke and Pharrell Williams were found to have infringed on Marvin Gaye’s song, Got to Give it Up. [19] The Marvin Gaye estate was awarded $5.3 million in damages. [20] Although a jury found the songs to be similar, the dissenting circuit judge on appeal, Jacqueline H. Nguyen, did not. [21]
Nguyen voiced her disappointment with the majority’s decision, stating, “The majority allows the Gayes to accomplish what no one has before: copyright a musical style.” [22] Stemming from Nguyen’s statement, the policy behind copyright in a musical style would seek to protect an artist, by not allowing complaints filed any time there was a remote chance of an infringement. This would essentially disrupt the balance of artist creativity and legal rights by forcing artists to carefully consider each piece of their work, so no copyright infringement occurs.
With the similarities and differences between songs being subtle, experts are used to help make the distinction. In the Marvin Gaye case, the Gaye family estate used an expert witness to testify to the similarities in Blurred Lines and Got to Give it Up. [23] The court used “analytical dissection of a work and expert testimony,” which “[required] breaking the works ‘down into their constituent elements and comparing those elements for proof of copying as measured by “substantial similarity.”’” [24] In an article by Alex Ross titled, The Unoriginal Originality of Led Zeppelin, Ross similarly breaks apart the elements of the opening guitar piece in dispute:
In the [Taurus], the lower voice descends by chromatic steps while the upper voice repeats notes of the tonic triad (A minor) . . . . In Stairway to Heaven, also in A minor, the lower voice descends by half-steps while the upper voice ascends—up an octave to an A and then further up to B and C. [25]
If the exact notes and pattern have to be argued to prove distinctiveness, then it would seem that the scope of copyright protection has been broadened, not narrowed, to uphold any cognizable element in the copyright claim.
The slippery slope is that some copyright infringement cases potentially broaden the scope to what constitutes copyright infringement. If Skidmore is decided in the same way as the Marvin Gaye case, then we could potentially see the result of an alleged copyright infringement decades in the making.
[1] 500 Greatest Songs of All Time, Rolling Stone (April 7, 2011, 4:33 PM), https://www.rollingstone.com/music/music-lists/500-greatest-songs-of-all-time-151127/led-zeppelin-stairway-to-heaven-2-70822/.
[2] Alex Ross, The Unoriginal Originality of Led Zeppelin, The New Yorker (April 14, 2016), https://www.newyorker.com/culture/cultural-comment/the-unoriginal-originality-of-led-zeppelin.
[3] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (C.D. Cal. Apr. 8, 2016).
[4] ALLMUSIC, https://www.allmusic.com/album/spirit-mw0000653465/credits (last visited Sep. 30, 2019).
[5] Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018), reh’g en banc granted sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).
[6] Skidmore v. Led Zeppelin, No. CV15-03462RGKAGRX, 2016 WL 6674985 at 1, (C.D. Cal., Aug. 8, 2016), vacated and remanded sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 905 F.3d 1116 (9th Cir. 2018).
[7] Id.
[8] 17 U.S.C.A. § 507(b).
[9] Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962, 1969 (2014).
[10] Peter Decherney, Not too Late for a Lawsuit Against Led Zeppelin’s ‘Stairway to Heaven’, Forbes (May 21, 2014, 11:03 AM), https://www.forbes.com/sites/peterdechercherney/2014/05/21/not-to-late-for-a-lawsuit-against-led-zeppelins-stairway-to-heaven/#515084544927.
[11] Skidmore v. Led Zeppelin, No. CV15-03462RGKAGRX, 2016 WL 6674985 at 1.
[12] Id.
[13] Id. at 2.
[14] Id.
[15] Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018), reh’g en banc granted sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).
[16] Id.
[17] Id.
[18] Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).
[19] Williams v. Gaye, 895 F.3d 1106, 1115 (9th Cir. 2018).
[20] Id. at 1118.
[21] Id. at 1138.
[22] Id.
[23] Id. at 1124.
[24] Id. (quoting Rice v. Fox Broad. Co., 148 F. Supp. 2d 1029, 1051 (C.D. Cal. 2001), aff’d in part, rev’d in part, 330 F.3d 1170 (9th Cir. 2003).
[25] Ross, supra note 2.
