On September 28, 2018, the Ninth Circuit made music industry headlines by vacating in part the district court’s decision in Skidmore v. Led Zeppelin, the “Stairway to Heaven” case, and remanding it for a new jury trial. 2018 U.S. App. LEXIS 27680 (9th Cir. Sept. 28, 2018). The question of whether Jimmy Page and Robert Plant copied the famous introduction to their renowned song is once again open. But for music attorneys, the decision resolves a previously unsettled question in music copyright law, while demonstrating another way for a jury to hear the commercial sound recording in question.

In the decision reviewed, the jury found that “Stairway to Heaven” did not infringe on the band Spirit’s song “Taurus,” written by Randy Wolfe, without being permitted to hear any recordings of Spirit performing the song (the “Skidmore” in the caption is trustee to Wolfe’s estate). 

The district court’s refusal was premised on the Copyright Act of 1909, which applies to works created before 1978. Under the 1909 Act, the distribution of sound recordings is not considered “publication,” and musical works could be copyrighted only through either publication of the composition’s sheet music, or registration and submission of a deposit copy of that sheet music to the Copyright Office, which did not accept sound recordings as deposit copies. The question in Led Zeppelin was whether, for a song copyrighted through registration and submission of a deposit copy, that deposit copy defines the scope of the song’s copyright protection. If protection is limited only to the sheet music, proof of infringement would be limited to a comparison of the sheet music to a recording of the allegedly infringing work, instead of comparing two sound recordings. The first approach makes proof of infringement more difficult, requiring a jury to determine whether two inherently unlike things are substantially similar to each other. Comparing the original sound recording, which would contain musical elements not included in the deposit copy, to the infringing work, makes such proof easier.

The Ninth Circuit had briefly addressed this issue only months earlier in Williams v. Gaye, which considered whether Robin Thicke and Pharrell Williams’ song “Blurred Lines” infringed upon Marvin Gaye’s “Got to Give It Up.”  885 F.3d 1150 (9th Cir. 2018). In that case, also dealing with pre-1978 music, the district court had held that the sheet music defined the scope of copyright protection, and refused to allow the jury to hear the Marvin Gaye recording of “Got to Give It Up.” The Ninth Circuit accepted the district court’s holding on the scope of copyright without addressing the merits of that view. Id. at 1166. In Led Zeppelin, however, this question could not be avoided, prompting the Ninth Circuit to be the first appellate court to address the question. The Ninth Circuit agreed with the district court that the scope of copyright protection in musical works under the 1909 Act is limited to the deposit copy of the work. Led Zeppelin, LEXIS 27680 at *37-38.

But this is not the end of the story. In both Gaye and Led Zeppelin, the jury was (or will be, in the remanded “Stairway to Heaven” trial) permitted to hear all or part of the original sound recording, in spite of the 1909 Act’s limits. That is because the Ninth Circuit’s decision does not preclude admission of the recording for all purposes.

Discretion to Admit Part of Recording in Expert Testimony

While the district court in Gaye did not allow the jury to hear the original recording of “Got to Give It Up,” it did allow the plaintiff’s expert to play an audio “mash-up” of the two songs in question, superimposing Gaye’s vocals onto the accompaniment in “Blurred Lines,” and vice versa. Gaye, 885 F.3d, at 1163. Defendants argued on appeal that the mash-ups contained unprotectable elements not contained within the deposit copy, including the vocals, keyboard parts, and bass melodies. The Ninth Circuit found that the district court acted within its discretion in permitting the jury to hear these mash-ups. In doing so, the court relied upon its decision in Three Boys Music Corp. v. Bolton, better known as the “Isley Brothers” or “Michael Bolton” case. 212 F.3d 477 (9th Cir. 2000). In Three Boys Music Corp. (successfully tried to a jury by GFL’s founder Gerry Fox), the Ninth Circuit affirmed a decision allowing the jury to hear the complete commercial sound recording of the copyrighted song because of inaccuracies in the deposit copy. Id. at 486. In Gaye, the Ninth Circuit applied this decision to hold that the admission of the mash-ups, which exceeded the elements contained in the deposit copy, was within the court’s discretion. Gaye, 885 F.3d at 1171.

Admission of the Sound Recording to Show Access

Because the Ninth Circuit remanded the Led Zeppelin case to the district court for a new trial, the court also ruled on Skidmore’s argument that the district court erred in precluding the jury from hearing Spirit’s recording of the song to establish Page’s access to the recording. Although the district court did find that the sound recording was relevant to show access, it held that allowing the jury to hear it for that purpose would be unduly prejudicial. On appeal, the Ninth Circuit found that, because the jury was not permitted to watch Page listen to the recording, the probative value of his testimony about his access to the recording was unduly restricted: “Although the jury could still draw conclusions and inferences from Page’s demeanor during his testimony, allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions.” Any risk of unfair prejudice, which the Ninth Circuit deemed small, could have been mitigated by proper jury instructions. As such, the jury in the new trial will be able to hear the entirety of Spirit’s recording of “Taurus” as relevant in determining access. Led Zeppelin, LEXIS 27680 at *40-41.

Conclusion

The Led Zeppelin decision provides, for the first time at the circuit court level, an answer to whether the scope of copyright in musical works under the 1909 Copyright Act is determined by the deposit copy. That answer is a resounding “yes.” While this conclusion prevents the commercial sound recording of a song from being played in comparison with the allegedly infringing work to establish similarity, there are other potential avenues for getting the original sound recording before the jury. For copyright litigators dealing with pre-1978 music, this decision should serve as the beginning, not the end, of getting the sound recording played in the courtroom, with plaintiffs pushing “access” oriented arguments and defendants seeking to fend them off, as the battle of the bands continues.

Gerard Fox Law has been and continues to be involved in some of the most high profile music and film copyright cases of our time. If you would like to discuss such a case, please contact us.

The author, Mary Catherine Amerine, is an associate resident in the firm’s Washington, DC office, specializing in copyright and other complex litigation matters.

Photo credit: Jim Summaria | Licensed under the CC BY-SA 3/0 License