In a dispute alleging that legendary rock band Led Zeppelin copied “Stairway to Heaven” from a song by a different band, the US Court of Appeals for the Ninth Circuit vacated in part a judgment in favor of Led Zeppelin, citing inadequate jury instructions on the substantive copyright issues of protectable musical elements and originality. Michael Skidmore. v. Led Zeppelin, et al., Case No. 16-56057 (9th Cir. Sept. 28, 2018) (Paez, J). 

Years after the death of Randy Wolfe, a member of the US rock band Spirit and composer of the 1967 Spirit song “Taurus,” the trustee of Wolf’s estate, Michael Skidmore, brought a suit for copyright infringement against Led Zeppelin, as well as the band’s members, record labels and publishing company, alleging that the opening notes of the hit song “Stairway to Heaven” were copied from and are substantially similar to those in “Taurus.” The case proceeded to a trial in which the jury returned a verdict for the defendants, finding that the two songs were not substantially similar under the “extrinsic test,” which objectively compares the protected areas of a work.

Skidmore appealed, challenging (1) various jury instructions, (2) the district court’s ruling that substantial similarity must be proven using the copyright registration deposit copy, (3) the district court’s ruling that sound recordings could not be played to prove defendants’ access to the song “Taurus,” and (4) certain other evidentiary issues.

The Ninth Circuit began by discussing the copyright owner’s burden to prove copyright infringement and explained that since ownership of the copyright in “Taurus” was not contested, the analysis turned on the second element of infringement, i.e., whether the defendants copied protected aspects of the song’s expression through copying and unlawful appropriation. In cases where there is no direct evidence of copying, the plaintiff can attempt to establish, by circumstantial proof, that defendants had access to the plaintiff’s work and that the two works share substantial similarities with respect to aspects of the plaintiff’s work that are original and therefore protected by copyright. 

The Ninth Circuit first addressed the issue of jury instructions and concluded that the district court erred by failing to instruct the jury that the selection and arrangement of unprotectable musical elements are, in fact, protectable. Noting that the extrinsic test for substantial similarity can be difficult to administer in the context of music, the Court concluded that the district court’s failure to instruct the jury that there can be copyright protection in an original combination of otherwise non-protectable music elements was prejudicial.

The Ninth Circuit also sided with Skidmore in his objection to the jury instructions on originality, noting that the district court’s instructions ran contrary to the Ninth Circuit’s 2004 decision in Swirsky, which held that a limited number of musical notes can be protected by copyright. Such an error on these jury instructions was deemed not to be harmless, as it undercut testimony by plaintiff’s expert that Led Zeppelin copied a chromatic scale that had been used in an original manner. Given the prejudice caused by the erroneous and misleading jury instructions on originality, selection and arrangement, the Court vacated the district court’s judgment and remanded for a new trial.

For the benefit of the district court and the parties, the Ninth Circuit also addressed several other evidentiary issues likely to arise again on remand. First, the Court concluded that there was no error in the district court’s holding that the deposit copy of “Taurus,” which consisted of sheet music rather than a sound recording, defined the scope of protectable copyright. Because the 1909 Copyright Act governed the scope of the 1967 copyright registration for “Taurus,” the Court agreed with the district court that Skidmore would have to rely on the sheet music deposit copy instead of a sound recording to prove substantial similarity between “Stairway to Heaven” and “Taurus.”

The Ninth Circuit also concluded that the district court abused its discretion by not allowing a recording of “Taurus” to be played for the purpose of demonstrating defendants’ access to the original work. Given the probative value of allowing the jury to observe band member Jimmy Page listening to the recordings and the relatively low risk of unfair prejudice, the Court found that the sound recording evidence should not have been excluded for the purpose of proving access.

Finally, the Ninth Circuit agreed that the district court was within its discretion not to exclude defendants’ expert testimony because of an alleged conflict of interest. There was no evidence that the expert, who was alleged to have “switched sides” in the dispute, had any confidential information from the first party for which the expert originally compared the “Taurus” and “Stairway to Heaven” recordings.

With these clarifying points, the Ninth Circuit vacated the district court judgment and remanded the case for a new trial.