Can't Wish Away The Mistakes In The Original 'Stairway To Heaven' Verdict

from the probably-will-still-win,-but-needed-to-be-reversed dept

Yesterday we published the first part of an analysis by copyright lawyer Rick Sanders who wrote up a thorough analysis of the recent 9th Circuit decision to overturn the jury verdict in a case involving whether or not the Led Zeppelin song "Stairway to Heaven" infringed on another song. The first part described how the 9th Circuit might correct a problematic "test" for infringement, and this part analyzes the problems with the jury instructions.

Last time, I explained why I thought the Ninth Circuit's recent vacating and remanding of the jury verdict in Led Zeppelin's favor was, long-term, a good thing for copyright law (even if I kind of liked the verdict and am genuinely sorry for Led Zeppelin). The reason is that the reversal gave one panel of the Ninth Circuit an opportunity to try to fix the Ninth Circuit's unhelpful legal framework for determining copyright infringement.

But that isn't why the panel reversed. While the panel did make some suggestions about how to present the "inverse-ratio" rule to the jury, the way it was presented to the original jury isn't what merited reversal. What merited reversal was the lack of another jury instruction about a basic and uncontroversial principle of copyright law that the parties agreed should have been there in some form. In short, the case is being reversed — and the Ninth Circuit is getting a chance to fix its own weird copyright law — because of what appears to have been a brain fart.

Jury Instructions: An Introduction

We all gasped when we heard about the reversal. Jury verdicts are hardly ever reversed. One of the few ways a jury verdict can be thrown out is if the jury was badly instructed in the law. Juries, naturally, don't bring any knowledge about the law with them when they serve. That's not their job, really. Their job is to weigh evidence, make credibility determinations, and so forth. But at some point, they need to be told what the law is, so they can take all that evidence they weighed and apply it to the law and render a verdict. How this is accomplished might surprise you.

There are several ways for jury instructions to be prepared and delivered to a jury, but the main way is this. First, the parties' attorneys confer about what jury instructions they can agree on and jointly submit those instructions to the court. In this, they are aided by pattern jury instructions prepared at the circuit court's direction. But pattern jury instructions don't cover every aspect of every area of the law. You'd need ever-updating volumes to do that. Also, the pattern jury instructions aren't unassailable: a party might disagree with one and explain how it should be and why.

For all other jury instructions, the parties submit their own versions of instructions they think address all of the legal issues being raised at trial, together with a short explanation of the legal authorities for their versions. The judge decides which version to use, or the judge might even craft his or her own version based on their own research.

Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the "jury charge." The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations).

"Selection and Arrangement": An Introduction

In this case, the parties agreed that they needed an instruction about what to do with a work that is made up of unprotectable elements. Just because your work is made up of lots of unprotectable elements, that doesn't mean your work as a whole can't be protected by copyright. If you put those unprotectable elements together in an original way, then the way you put those elements together is protectable, though not the individual elements themselves. After all, you can theoretically dissect any creative work down into non-protectable elements: individual notes, individual words and phrases, individual brushstrokes, etc. It's what you do with those non-protectable elements that counts. Courts call this "selection and arrangement," which makes it seem more abstract than it is.

In this case, the plaintiffs hold the copyright in the song "Taurus," which has for years been rumored as the inspiration for Led Zeppelin's "Stairway to Heaven." (But inspiration isn't infringement! Well, at least, not necessarily.) When the plaintiffs finally got around to suing, Led Zeppelin argued (among other things) that any similarities between the songs were only for non-protectable elements, like the use of the chromatic scale. Plaintiffs argued that, even if that were true, the "selection and arrangement" of those elements were original (and, by implication, that "Stairway to Heaven" took that selection and arrangement).

Both parties recognized the need for an instruction on this issue. They disagreed on what it should say. They submitted competing instructions for the judge to consider. Then came the jury charge, at the very end of the case, just before the jury began deliberations. The judge began to read the instructions. Now, normally, a party would have an opportunity to object on the record to an instruction. This is a prerequisite to complaining about it on appeal. But the judge here didn't want to hear any objections. He reasoned that, if the parties disagreed about an instruction in their submissions, it was reasonable to assume that they would object to an instruction that didn't match what they'd submitted.

The parties waited for the instruction about what to do with works made up of unprotectable elements. It never came. This was good for Led Zeppelin, though not ideal. On the one hand, since Led Zeppelin had presented evidence that all they'd taken (if anything) from "Taurus" was not protectable, such an instruction couldn't help their argument, no matter how it was crafted. On the other hand, it was foreseeable at the time that the missing jury instruction could imperil a jury verdict in Led Zeppelin's favor (assuming they could focus on it with 500 other things going on at that moment.

On appeal, the strongest argument — that trial court was correct not to give the instruction — wasn't really available to Led Zeppelin because even it had suggested an instruction. (Led Zeppelin tried anyway.) Instead, it had to argue that the missing instruction made no difference to the jury's deliberations. That's where another major goof with the jury instructions came in.

Copyright's Broad Scope

Nearly all copyright cases will need an instruction about originality. Without "originality," there is no copyright. Originality, however, is pretty easy to achieve. All that's really required is that the work be expressive (i.e., not just ideas) and the product of a human mind. This last requirement not only excludes things like the "monkey selfie," but also things like underlying facts, which exist independent of human thought; and stock "tools of the trade" commonly available to everyone in the creative field, like stock characters, computer code that everyone uses, certain three chord progressions, and so forth (what lawyers call "scènes à faire"). It also excludes material the author copied from other works (including those in the public domain), but only if the author actually copied them. Originality doesn't mean novelty, just that it's the author's independent expression.

Originality is so basic to copyright law that there's actually one of those "pattern jury instructions" about it. Pattern jury instructions aren't law and aren't always appropriate in every instance, but departure from them demands explanation. The court took the model instruction and added the stuff in bold and took out the stuff that's been struck through:

An original work may include or incorporate elements taken from works owned by others, with the owner's permission. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, [t]he original parts of the plaintiff's work are the parts created:

1. independently by the work's author, that is, the author did not copy it from another work; and
2. by use of at least some minimal creativity.

In copyright law, the "original" part of a work need not be new or novel.

You might detect a pattern here (as it were). The instruction about how to treat works consisting of non-protectable elements was left out. Now the instruction about originality includes a new sentence that emphasizes how non-protectable elements aren't protectable, without telling the jury that those non-protectable elements can be selected and arranged in a protectable way.

What it Means to Create

I don't know if copyright has a single "heart." Perhaps, like an octopus, it has several hearts. But surely one of copyright law's hearts is that creativity can and often does build on the work of others. This idea is echoed in fair use. And it is echoed in the non-controversial idea that not every element of a work must be protectable for the work to be entitled to copyright protection. "Selection and arrangement" is just a stilted and abstract way of saying: if you give 100 kids the same collection of 100 lego bricks, you will have 100 different original works in about 30 minutes, even though no single lego brick is protectable and even though the 100 different original works will naturally share certain techniques in common.

These two errors in the jury instructions aren't just about technicalities of a highly technical law. Goodness knows there's a lot of those in copyright law. No, they go to one of the basic tenets of copyright law: what it means to create.

My charitable interpretation of all this is that the court had a major brain fart that Led Zeppelin's lawyers didn't see coming or didn't fully understand how perilous the consequences would be. The other interpretation is that this was a legal strategy that worked too well and backfired badly. It's too bad. I strongly suspect that a correctly instructed jury would have come to the same verdict, but the scale of this mistake is such that we can't safely assume that. I also strongly suspect Led Zeppelin will prevail on remand—after incurring more expense, lost time and anxiety.

Rick Sanders is a trademark, trade secrets and copyright litigator and a founding partner of Aaron & Sanders, PLLC. From 2012 to 2014, he was an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. He blogs at IPBreakdown and tweets at @RickSandersLaw.


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  • identicon
    Anonymous Coward, 16 Oct 2018 @ 1:52pm

    Judges be damned for overturning ANY JURY VERDICT.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 2:19pm

      Re:

      I disagree. If the instructions from the Judge to the jury weren't appropriate, any findings of the jury have to be assumed to be flawed, like we saw here.

      The retrial should come to the same findings, but with the jury being appropriately educated as to what the law says.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Oct 2018 @ 6:24pm

        Re: Re:

        Why should defendant have to pay for flaws of any kind especially from judges who should be no more than referee over trial process?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 7:34pm

      Re:

      They should try to get it right on the next case, not reverse a jjury verdict placing Led Zeppelin in double jeopaardy.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Oct 2018 @ 2:46pm

    Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the "jury charge." The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations).

    What a mess. At minimum, I'd expect that the instructions should be written up, sent to the attorneys, and then the judge reads that write-up to the jury. That would give the attorneys a chance to object, on the record and in advance of the instructions' delivery.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Oct 2018 @ 6:44pm

      Re:

      That juries have the last check on these laws drives this government berzerk. Jurors can decide if they feel the law is right or wrong. Many many times judges scare the bejesus out of jurors by giving these last minute instructions making jurors believe they can't decide a case based on validity of a law or the spirit of a law.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 16 Oct 2018 @ 5:31pm

    Copyright, it's really the...

    Highway to hell.

    reply to this | link to this | view in chronology ]

    • identicon
      tp, 16 Oct 2018 @ 5:39pm

      Re: Copyright, it's really the...

      > Copyright, it's really the...Highway to hell.

      Maybe it would work better if you were on the right side of the legal boundary and wouldn't need to be afraid of the 300k damage awards all the time? Like try to follow the legal limits, instead of trying to find loopholes from the laws?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Oct 2018 @ 6:27pm

        Re: Re: Copyright, it's really the...

        That’s a whole lot of unsupported supposition there bro. Maybe stick to what you know. Which isn’t much by the look of it.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Oct 2018 @ 6:30pm

        Re: Re: Copyright, it's really the...

        People aren't breaking current laws fast enough to feed the frenzy so they give a swift kick in the britches of legiislative branch.. "Write more laws quick."

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Oct 2018 @ 6:35pm

          Re: Re: Re: Copyright, it's really the...

          Its exactly as if they are intentionally draining the wealth of these bands to put some more cavier on their tables.

          reply to this | link to this | view in chronology ]

      • icon
        techflaws (profile), 16 Oct 2018 @ 9:52pm

        Re: Re: Copyright, it's really the...

        You mean like Warner when they lied about owning the rights to 'Happy Birthday to you'?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Oct 2018 @ 1:38am

          Re: Re: Re: Copyright, it's really the...

          Or all the times Disney derived stories from the public domain.

          Don't count on Tero Pulkinen admitting that though. Other humans exist only as a means for him to claim money from. The guy's a complete and utter sociopath.

          reply to this | link to this | view in chronology ]

  • identicon
    Dingledore the Previously Impervious, 17 Oct 2018 @ 4:27am

    I still think

    that the writers of Twinkle Twinkle Little Star should be suing the s##t out of the writers of Baa Baa Black Sheep.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 17 Oct 2018 @ 8:43am

      Re: I still think

      Screw baa baa black sheep, they don't have any money.
      Think what they could get from all the schools singing the alphabet.

      Sure the melody was preexisting for over a hundred year anyway, but that shouldn't make much difference for showing access and similarity right?

      reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 17 Oct 2018 @ 6:40am

    I really don't see how
    "In copyright law, the "original" part of a work need not be new or novel."

    tells the Jury "how to treat works consisting of non-protectable elements"

    It doesn't say anything about selection and arrangement.. and isn't it kinda just plain wrong?

    How is some part of the work you are supposed to be getting copyright on (whether it be the selection and arrangement or any other part of the work) simultaneously original and preexisting (not new)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Oct 2018 @ 10:02am

    Seems like they want it intentionally to remain complex and complicated..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Oct 2018 @ 10:11am

    how to file this?

    under:
    Crisis - (definition already known)

    Crisist - person/persons who consider everything to be one crisis followed by another crisis; alarmist

    Christist - person/persons who believe that the acceptance of Jesus Christ (as the only perfect sacrifice for the sin of man) is the only way to go to heaven - hence the only true "Stairway to Heaven

    reply to this | link to this | view in chronology ]


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