9th Circuit Gets It Right: Says Led Zeppelin Didn't Infringe; Dumps Dumb 'Inverse Ratio' Rule
from the good-to-see dept
I will admit to being worried, when the 9th Circuit originally agreed to reopen the long running copyright dispute between the estate of Randy Wolfe (aka Randy California) of the band Spirit, and Led Zeppelin. At issue was whether or not the classic Zepplin song “Stairway to Heaven” infringed on the Spirit song Taurus. As we noted, there are some similarities between the two songs… but they also have similarities to other songs in history, including Dido’s Lament from the 17th century and Bach’s Bourree from the 18th century and a bunch of other songs.
Thankfully, a jury, and then the 9th Circuit, both sided with Led Zeppelin originally, claiming no infringement. But, then the 9th Circuit vacated the earlier decision and re-opened the issue. We had a pair of excellent blog posts by copyright lawyer Rick Sanders highlighting why there were good reasons to revisit the case, noting some real mistakes made during the original trial and also the very, very messed up “inverse-ratio” test used by the 9th Circuit in determining if songs were infringing. As that post noted, the 9th Circuit has long used a very confusing (and legally nonsensical) “test” for whether or not one song is infringing on another. Without going too deep into the weeds, the 9th Circuit basically said the more similar works were, the less you needed to do to prove “access” to the original work. As that link above shows, this can lead to some very significant problems in copyright cases (I recommend reading that link so I don’t need to redo it).
A second question that the court was asked to review — is whether or not juries should be able to hear the recordings. This was super important, because if you were to just listen to the two songs, you might hear the fact that they are, indeed, similar. But, since not everything in the recorded version is protectable (and at the time the songs were written, the federal copyright only covered the composition, but not the recording), allowing the jury to make decisions based on the recording would have been a problem. It’s very difficult, upon just listening, to understand which parts are protected by copyright and which are not.
Perhaps surprisingly, the 9th Circuit has now appeared to do a pretty decent job in its latest ruling on the case. The key points: “Stairway” did not infringe, juries shouldn’t hear the misleading sound recording, and the “inverse ratio” rule is no longer the right one to use in the 9th Circuit. Hooray.
We’ll go through a few key points in the decision. First, the representative of the Wolfe estate, Michael Skidmore (after whom the case is named), argued that the deposit copy of the sheet music for “Taurus” was not the full scope of the copyright in the song, but rather a sort of “reference” to the actual song. The court says that’s not how any of this works:
Skidmore suggests that the copyright extends beyond the sheet music; that is, the deposit copy is somehow archival in nature and more of a reference point than a definitive filing. This approach ignores the text of the statute and the purpose of the deposit.
We have outlined copyright protection under the 1909 Act as follows: ?[A]n unpublished work was protected by state common law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme.? ABKCO, 217 F.3d at 688 (quoting LaCienega Music Co. v. ZZ Top, 53 F.3d 950, 952 (9th Cir. 1995)). The referenced federal copyright protection for unpublished works is found in the text of the statute: ?copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a . . . musical composition . . . .? …
The text is clear?for unpublished works, the author must deposit one complete copy of such work. The purpose of the deposit is to make a record of the claimed copyright, provide notice to third parties, and prevent confusion about the scope of the copyright.
A bunch of other theories that Skidmore tossed at the wall to argue that the deposit copy wasn’t the full description of the work all flop as well:
Skidmore also complains that restricting protection to the deposit copy disadvantages musicians who do not read music because it can be time consuming and expensive to make an accurate deposit copy. Apparently, that was not a problem here, as Wolfe?s work was transcribed for the sheet music deposit. Digital transcription and other technological advances undercut this argument, not to mention that for decades now, sound recordings have been accepted as the deposit copy. Finally, Skidmore offers conjecture about what might happen if a deposit copy were lost or destroyed. We need not play this ?what if? guessing game because the statute is clear and unambiguous.
On the question of playing the recording to the jury, the court again finds (correctly) that the unprotectable or non-protected elements might influence the jury too much:
To prevent the jury from making an erroneous comparison for determining substantial similarity, the court properly excluded the sound recording, which contains performance elements that are not protected by the Taurus deposit copy. Indeed, the court?s exclusion ruling displayed a clear understanding of the distinct components of copying and unlawful appropriation, letting the evidence in ?as far as access,? but ?not . . . to compare the performance? to Stairway to Heaven.
What was notable here is that Skidmore/Wolfe Estate tried to sneak the recording into the proceedings by arguing that they needed to play it to show that Led Zeppelin had access to the song, not to show “substantial similarity.” To show infringement (as discussed in the link above), the estate needed to show both access and substantial similarity. Yet, here the court points out that the estate didn’t even need to prove access, because Jimmy Page flat out admitted to having the album in question, and thus there’s not even a reason to play the song to establish access.
In any event, the evidentiary question is moot. It turns out Skidmore?s examination of Page on access proved fruitful. When Page testified, he candidly admitted to owning ?a copy of the album that contains ?Taurus,? . . . in [his] collection,? though still denying ?any knowledge of ?Taurus.?? The jury found that both Page and Plant ?had access to the musical composition Taurus before Stairway to Heaven was created.? Once the jury made that finding, the remaining questions on the jury verdict form related to substantial similarity of the works.
Then there was the issue of the “inverse ratio” rule as discussed above. There are all sorts of problems with the inverse ratio rule, but the Wolfe Estate complained that it should have been used in the jury instructions. Thankfully, here, the 9th Circuit effectively stabs the inverse ratio rule dead. And, they stomp all over it in the process.
Skidmore proposed an inverse ratio rule instruction, but the court chose not to give the instruction. The court reaffirmed this decision when Skidmore raised the question again after the close of testimony: ?We?re not going to give that instruction.? Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.
The court then goes through a decently long history of times that the 9th Circuit’s use of the inverse ratio rule was a complete and utter mess, before summarizing:
The flaws in the rule can be seen in the inconsistent ways in which we have applied the rule within our circuit, the logic of the circuits that have rejected the rule, and analysis by academics and commentators. See id. (?There is nothing positive that can be said about a rule that lacks any clarity at all: trying to get a jury to both understand the rule and apply it properly is totally impossible.?).
As a practical matter, the concept of ?access? is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work. See Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand. See Brooks Barnes, The Streaming Era Has Finally Arrived. Everything Is About to Change., N.Y. Times, Nov. 18, 2019 (In addition to Netflix, which ?entertain[s] more than 158 million subscribers worldwide,? there are currently ?271 online video services available in the United States?).
To the extent ?access? still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. Thus the rule benefits those with highly popular works, like The Office, which are also highly accessible. But nothing in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.
Finally, the inverse ratio rule improperly dictates how the jury should reach its decision. The burden of proof in a civil case is preponderance of the evidence. Yet this judge-made rule could fittingly be called the ?inverse burden rule.?
And thus, finally (and happily) say goodbye to the inverse ratio rule.
Next, the court discusses a jury instruction that reminded the jury that not everything in a song is protectable by copyright. The Wolfe Estate whined that the jury instructions put too much emphasis on what couldn’t be covered by copyright — telling the jury that copyright “does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.” The Wolfe estate was upset that this accurate statement might lead the jury into properly recognizing that the protectable elements in Taurus were not copied in Stairway. The court is not impressed.
Skidmore objects to the list of unprotectable elements. In particular, he argues that characterizing the ?descending chromatic scales, arpeggios or short sequence of three notes? as examples of ?common musical elements? was prejudicial to him.
To put this instruction in context, it is useful to outline the essence of the ?common musical elements? or building blocks. The chromatic scale is one of two principal scales in Western music. It consists of twelve pitches separated by a half-step. On a piano, this means playing the white and black keys in order from left to right. Three or more notes or pitches sounded simultaneously are called chords, and an arpeggio, sometimes called a broken chord, is ?[a] chord whose pitches are sounded successively, . . . rather than simultaneously.?…
To conduct a copyright infringement analysis, the factfinders ask ?whether ?the protectible elements, standing alone, are substantially similar?? and ?disregard the non-protectible elements.?… Jury Instruction No. 16 correctly listed non-protectable musical building blocks that no individual may own, and did not, as Skidmore claims, exclude the particular use of musical elements in an original expression.
For example, despite Skidmore?s challenge to the characterization of descending chromatic scales as unprotectable, even his own expert musicologist, Dr. Stewart, agreed musical concepts like the minor chromatic line and the associated chords have been ?used in music for quite a long time? as ?building blocks.? This candid acknowledgement was echoed by Led Zeppelin?s expert. Dr. Ferrara described the ?chromatic scale, descending or ascending,? as ?a musical building block. This is something that no one can possibly own.? The commonality of descending scales and arpeggios has been reinforced by the Copyright Office, which lists ?[d]iatonic or chromatic scales? and ?arpeggios? as common property musical material….
Indeed, the court reinforces that this is not a new concept at all.
We have never extended copyright protection to just a few notes. Instead we have held that ?a four-note sequence common in the music field? is not the copyrightable expression in a song.
There’s some more useful language in the ruling concerning what is copyrightable subject matter within a song:
Skidmore appears to want less than the law demands. In his closing and on appeal, he argued that a work is original as long as it was independently created. Not quite. Though not demanding, originality requires at least ?minimal? or ?slight? creativity?a ?modicum? of ?creative spark??in addition to independent creation.
There are some additional, mostly procedural bits in the case, but overall this is a good and useful ruling. And, once again, it shows that Stairway to Heaven does not infringe on whatever copyright there might be in Taurus.