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9th Circuit Decision to Overturn Jury Verdict in “Stairway to Heaven” Case

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).

Patent Trolls Storm The Podcasting Industry

Written By: Fletcher Alford

Podcasting has become a lucrative business. The increasing popularity of podcasts has in its wake advanced an army of patent trolls. Comedian and acclaimed podcaster, Adam Carolla recently commented, during a patent lawsuit, that these trolls “Make a business of buying technology that they didn’t create and then find ways to sue to extract money.”[1] Many in the podcasting industry will likely agree. Consider the source: In the podcasting world, Adam Carolla is a pioneer. He began his first podcast in February, 2009 and shot to the number 1 spot on iTunes by the third episode. [2]From March, 2009 to March, 2011, Adam’s podcast received nearly sixty million unique downloads, and won a Guinness World Record for the most downloaded podcast ever.[3] Even with such verified success though, not everyone was a fan.

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“Dumb” Starbucks: “Dumb” Move?

By Wilson Lau

On February 8, 2014, a new coffee shop opened its doors in Los Feliz, Los Angeles. According to the general consensus, the shop’s coffee is “pretty awful,” yet people were willing wait in line for an hour to get a cup of coffee from the new shop. So, what kept these people in line? While curiosity may tempt a few people to try the new coffee shop, more likely than not, it has something to do with its name: Dumb Starbucks. According to patrons, Dumb Starbucks looked identical to the real Starbucks—that is, except for the word “dumb” placed in front of everything.

The mastermind behind Dumb Starbucks is Nathan Fielder, a comedian on Comedy Central. Fielder apparently believes that the real Starbucks cannot sue him because, by adding the word “dumb,” he is technically making fun of Starbucks, and parodies are protected under the Fair Use doctrine of trademark law. According to one court, “[a] parody must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody.”[1] In the case of Dumb Starbucks, Fielder would most likely satisfy this court’s definition of parody because of the shop’s FAQs listed on the premises, describing the company as a parody. In addition to their FAQs, the baristas working at Dumb Starbucks also told patrons that they are not affiliated with the real Starbucks. Continue Reading

GoldieBlox Seeks Declaratory Judgment for Beastie Boys Parody

By Brandon Wiebe

GoldieBlox, a toy company that generated buzz this week when its recent online ad went viral, has filed a lawsuit in federal court seeking a declaratory judgment that its parody of the Beastie Boys’ song “Girls” constitutes fair use. The viral commercial shows three girls, bored of watching princess cartoons, build and unleash a Rube Goldberg machine in their house. The commercial is set to a parody of “Girls,” with the original lyrics replaced by more empowering lyrics in line with the company’s mission to get girls involved in science, technology and engineering.

The complaint in GoldieBlox, Inc. v. Island Def Jam Music Grp., 4:13-cv-05428-DMR (N.D. Cal. 2013) alleges that “the Beastie Boys and their label have lashed out and accused GoldieBlox of copyright infringement.” It is settled law that even commercial parody can constitute fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). While money generated from a parody can weigh against a finding of fair use, it is only one of four factors weighted in fair use analysis. The defendants will likely seek to distinguish a parodic recording created as a single or part of an album versus one made as a background accompaniment to an advertisement.

Read more: http://www.hollywoodreporter.com/thr-esq/beastie-boys-threaten-creator-viral-659308