Ninth Circuit’s last step up Stairway to Heaven case favors Led Zeppelin.

The Ninth Circuit this week released its opinion in the en banc rehearing of 2014 music copyright case Skidmore v. Led Zeppelin.1 The opinion follows rehearing of the Skidmore appeal first argued in 2018 before a three-judge panel.2 (Federal case appeals are initially heard by three judge panels. A majority of active circuit judges may decide to rehear the cases before the entire court or, in large circuits like the Ninth, larger panels). In the first hearing, the panel vacated a judgment that Stairway to Heaven (Led Zeppelin’s 1971 rock anthem and perhaps the greatest rock song of all time) did not infringe the copyright in Taurus, the band Spirit’s 1967 composition written by Randy Wolfe. The 2018 panel had remanded the case, ordering it back down to the federal district court for a new trial.

The en banc decision has a number of interesting legal aspects. First, the court disavowed a doctrine known as the “inverse ratio” rule, which had been applied to determine whether there had been access to a work protected by copyright. Access is an essential element of an infringement claim because independent creation of even an identical work is a complete defense. The inverse ratio rule, first followed in the Ninth Circuit in the 1977 case Sid & Marty Krofft Television v. McDonald’s Corp.,3 stated that a higher degree of access to the allegedly copied original work justifies a lower standard of proof that the copy is substantially similar to the original. In other words, the greater the access that a defendant had to a copyrighted work, the lesser the similarity between the works that a plaintiff had to prove to support an inference that the similarity is the result of the defendant copying. The inverse ratio rule had a history of confusing and inconsistent application, and it does not appear in the Copyright Act. Stepping away from the rule as most other circuits have was probably overdue.

Additionally, the court confirmed that musical works published before the January 1, 1978, effective date of the 1976 Copyright Act (like Taurus, which was published in 1967) are subject to the limitations in 1909 Copyright Act. This earlier version of the copyright statute limited copyright protection for musical compositions to either what the owner included in a written copy deposited with the Copyright Office, or to what the owner “published.” Sound recordings were not accepted as deposit copies, and releasing a recording was not defined as “publication.” The law changed in 1972, when Congress extended copyright protection to recordings as creative works separate from an underlying musical composition. But since the Taurus recording predated that change, the court rejected the plaintiff’s argument that not allowing the jury to hear the recorded version was a judicial error. The plaintiff had sought to play the recording to highlight its claimed similarity with Stairway to Heaven, arguing that in the “real world” (in which some musicians play despite being unable to read sheet music), the 1909 limitation was nonsensical. As with the inverse ratio rule, the en banc panel’s rejection of that argument makes sense.

Somewhat more confusing, however, is what to take from the case as to the difference between separate common musical elements (unprotectable by copyright) and the combination of those elements in a new way (protectable). As the dissent notes, this distinction lay at the heart of the plaintiff’s case. The court of appeals considered it in the context of whether jury instructions at trial stated the law accurately when they:

told the jury that a descending chromatic scale, arpeggios, and other common elements are not protected by copyright, and that the jury must disregard all such elements. In other words, the jury was told to disregard the precise elements that [the plaintiff’s] experts testified had been combined in a unique and original way, and thus the district court improperly foreclosed the possibility that Taurus’s combination of a descending chromatic line (which skipped the note E) and an ascending line using memorable note pairs was protected.

The plaintiff proposed instructions to explain that a combination of musical elements that are individually too common to be protectable under copyright law may be protectable. Led Zeppelin objected, proposing its own instruction stating that an “arrangement and selection of unprotected elements [may be protectable] only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”

The trial court declined to give either instruction. Instead, the jury was instructed that copyright does not protect “ideas, themes, or common musical elements, such as descending chromatic scales, arpeggios, or short sequences of three notes.” The question is whether that instruction—a correct statement of the law as far as it goes—gave the jury the incorrect impression that such elements could never be combined in such a way as to create an original and protectable composition.

The en banc panel stated that a “selection and arrangement instruction would not have convinced the jury that Stairway to Heaven was substantially similar to the deposit copy of Taurus”. That may be so. Some guitar experts who have compared the two songs have persuasively explained that there is nothing infringing in Stairway to Heaven even if parts of it vaguely resemble parts of Taurus when played one after the other (especially when both build on timeless unprotectable musical elements that also appear in a myriad of classic compositions). A reasonable jury might well have been unable to reach any other conclusion, which would make the panel’s decision correct. But the panel’s own reasoning suggests that the better decision may have been better to let the jury decide.

The panel acknowledged that the Taurus “copyright infringement claim was based on the combination of [the] five elements” discussed above. It’s also true that while each element may be as unprotectable as any note in a scale, “a pattern of notes in a tune may earn copyright protection.” And the panel emphasized that “[s]emantics do not characterize legal arguments—substance does.” Yet the panel refused to find any error in not instructing the jury that a combination of unprotectable elements could itself be protectable. The reason? Primarily because the plaintiff “and his experts never argued to the jury that the claimed musical elements cohere to form a holistic musical design.” In other words, the panel found that the plaintiff did not present evidence that the various elements in Taurus were something that the jury should consider as a combination.

According to the earlier three-judge panel, however, “testimony by [the plaintiff’s] expert that Led Zeppelin copied a chromatic scale that had been used in an original manner” was heard by the jury. Without the trial transcripts and evidence reviewed in the appeal, it is not clear whether such testimony was enough to require instructing the jury that copying an original use of an unprotectable scale could infringe. If it was, then the dissent raises an important concern in opining that the panel’s “ruling weakens copyright protection for musicians by robbing them of the ability to protect a unique way of combining musical elements.”

Further uncertainty is found in the en banc panel’s distinction between a “holistic musical design” and a “unique and memorable” combination of disparate elements. How many elements, for example, must be included before unprotectable notes and scales become musical designs? How wide must the range of creative choices available in combining those elements be before there is no way to combine them in an original manner?

In rejecting the inverse ratio rule as discussed above, the panel noted that the rule “lacks any clarity at all; trying to get a jury to both understand the rule and apply it properly is totally impossible.” Will the long climb up this legal Stairway end with an equally unclear outcome for musicians struggling to protect or build on the edges of creative rights?

We may have to let the band play on before we can answer.

1  Skidmore v. Led Zeppelin, No. 16-56057 (9th Cir. Mar. 9, 2020).

1  Skidmore v. Led Zeppelin, No. 16-56057 (9th Cir. Sept. 28, 2018).

3  Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977).

Dane Johnson