DOJ/Copyright Office File An Amicus Brief In Support Of Led Zeppellin

from the copyright-is-turning-upside-down dept

As announced by the Copyright Office’s General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song “Taurus” with their classic “Stairway to Heaven.” We’ve discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach’s Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody.

There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome — that Led Zeppelin didn’t infringe on the Taurus composition — seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up.

The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really.

And here, the Copyright Office and the DOJ are on the right side again. The government’s brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we’ve discussed, for musical works prior to 1973, you could only get a copyright in the “composition” and not the recording. One of the arguments in this case is that Randy Wolfe’s estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968… so you don’t just get to pretend that the composition copyright magically covers the sound recording.

Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not.

And — perhaps surprisingly — the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what’s left is fairly basic and not covered by copyright either:

The copyright at issue here was obtained, as the Copyright Act then required, by depositing a ?complete copy? of the work with the Copyright Office. The copyright that was created by that deposit extends only to the work that was deposited with the Copyright Office. While there may be other, related works in which the author or his successors may hold or have held rights, the federal copyright at issue here extends only to the work that was deposited. The district court and the panel thus properly concluded that ?performance elements,? which might have been present when the song was performed or recorded but were not reflected in the deposited sheet music, are not protected by the copyright registered with the Copyright Office.

Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a ?thin? copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court?s judgment should be affirmed.

The brief here is quite readable, and more or less mocks the arguments of the plaintiff for not recognizing that the same song can have a variety of different copyrights:

Plaintiff?s suggestion that the copyrighted work is something other than the work deposited with the Copyright Office appears to be largely premised on the mistaken view that there cannot be multiple, distinct copyrightable works that are all versions of the same song. The statute expressly contemplates that there can be.

It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case. But here we are.

There is still time for the 9th Circuit to mess things up even worse, though. They’re good at that when it comes to copyright. Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one.

Filed Under: , , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “DOJ/Copyright Office File An Amicus Brief In Support Of Led Zeppellin”

Subscribe: RSS Leave a comment
Code Monkey (profile) says:

Re: Copyright gone too far

I agree. Sure, both songs MIGHT have similarities, but I don’t subscribe to the notion that Led Zep INTENTIONALLY ripped off any riffs.

And to Mike’s statement that there might be a passing resemblance to J.S. Bach’s Bourree in E Minor: That would not be in question here, because, AFAIK, anything written before 1925 is not covered by U.S. Copyright law and therefore couldn’t be used as a basis for a lawsuit.

I think the entire matter of the lawsuit is just silly…..

Anonymous Coward says:

Maybe the riaa woke up one day and realised there has to be a limit to copyright and basic music notes and sequence,s ,
other wise all the new songwriters and composers will not be able to create anything new , without getting sued by someone who wrote a song
in 1960 which happens to have a few notes in common with a new song released in 2019.
theres a limited amount of notes and sequences that are attractive to the public at least in terms of pop music.

Copyright has gone to far when singers are getting sued over 3-4 notes
that are used in a 4 minute song.
even though the melody is different in both songs .

Samuel Abram (profile) says:

You know what they say…

Even broken 24-hour clocks are correct once a day. And I guess the RIAA realized that copyright Maximalism doesn’t just affect pirates, it affects them (and more importantly for them, their bottom line) too.

I don’t feel one bit of sympathy or remorse for the RIAA, for they reaped what they have sewn. However, I’m glad they came around eventually.

urza9814 (profile) says:

Re: You know what they say…

The RIAA is on the side of their own profits, every time.

When an artist signed to a major label publishes a song that violates someone else’s copyright, the RIAA still gets paid, so they won’t sue for that. When some random guy on YouTube does it, they don’t, so they will.

Granted, this artist is in the UK, so I don’t think the RIAA gets anything from that…but they still want to set a precedent that protects those who play by the music industry rules of fifty years ago. Funnel money to them via a major label or get sued.

Anonymous Coward says:

DOJ has not sided with a UK band over an American band. They appear to be attempting to get this right on the facts of the case. Nobody back in the days these two songs came out made any such comparison that Stairway to Heaven sounded anything like Taurus. They are two completely different works of art musically and are sadly being exploited by this lawsuit claim.

Anonymous Coward says:

It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case.

It’s not so much you find yourself on the same side – that sounds more like you went over to their side.

Really, it’s more like the RIAA and Copyright Office dragged their rightfully battered corpses over to the realm of sanity after realizing that the fire they started to watch the world burn in finally scorched off their eyebrows.

Anonymous Coward says:

Re: If The Zep lose ...

Nah they can’t EXIST under the regime they created themselves.
It’s for OTHER people not themselves. If everyone started suing the people they represent every time one of the artist they own “not changing that” had one thing in common with another artist song it would be like secondary liability almost. They would not be able to make enough to sustain themselves. Something would have to change.

Anonymous Coward says:

The point about J.S. Bach is important in that the taurus song is similar
to bach,s music composition,
eg the taurus song may not be completely original ,
its also important that if a song and all its notes are not registered
with the copyright its harder to sue or prove a case versus a song that was
registered with the copyright office with all the documents necessary to
show its an original composition.

pop music is mostly based on new release,s and current bands
and singers and new songs.
The riaa has a duty to stand up for singers and songwriters to stop
them being at risk of being sued every time they release a new song
and to preserve their right to create .
Its sad that some singers are afraid to say they are fans of some
classic rock group in case it leaves them open to being sued
cos their song sounds slightly similar to an old song from the 70,s or the 80,s .

Anonymous Coward says:

The RIAA argued to a court that you could go too far...

The RIAA argued to a court that you could go too far in protecting copyright. Really.

So just what, exactly, is "going too far"? Simple. The point at which it reduces total RIAA member profits by siding with a commercially smaller artist over a larger one. In fact one doesn’t even need to ask silly questions about things such as "originality". Only question needs to be answered: Which one is worth more?

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...