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: amicus brief, composition, copyright, copyright office, doj, led zeppelin, spirit, stairway to heaven, taurus


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Anonymous Coward, 20 Aug 2019 @ 12:49pm

    Riaa on this case: copyright has gone too far.

    Riaa on this case but they are just suing some random guy: HES A MONSTER TAKE HIS LIFE.

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

  2. identicon
    Anonymous Coward, 20 Aug 2019 @ 12:59pm

    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 .

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

  3. icon
    Samuel Abram (profile), 20 Aug 2019 @ 1:07pm

    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.

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

  4. identicon
    Anonymous Coward, 20 Aug 2019 @ 1:08pm

    Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one.

    Don't think it will matter in this case as I believe that the UK is not on his "shithole" country list.

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

  5. identicon
    Anonymous Coward, 20 Aug 2019 @ 2:13pm

    Re: You know what they say…

    I don't feel one bit of sympathy or remorse for the RIAA, for they reaped what they have sewn.

    You'd expect to find them in stitches over this then....

    I find this brief to be sow-sow.

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

  6. identicon
    Anonymous Coward, 20 Aug 2019 @ 4:11pm

    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.

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

  7. identicon
    Anonymous Coward, 20 Aug 2019 @ 7:26pm

    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.

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

  8. icon
    That One Guy (profile), 20 Aug 2019 @ 8:26pm

    Re: You know what they say…

    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.

    On this particular case perhaps, I fully expect them to go back to full-blown insanity the second it's over.

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

  9. icon
    techflaws (profile), 20 Aug 2019 @ 9:45pm

    Re:

    Down Under, anyone?

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

  10. icon
    PaulT (profile), 21 Aug 2019 @ 3:37am

    Re:

    He's too busy sulking because the Danish laughed in his face about Greenland.

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

  11. identicon
    urza9814, 21 Aug 2019 @ 6:34am

    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.

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

  12. icon
    Code Monkey (profile), 21 Aug 2019 @ 7:32am

    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.....

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

  13. icon
    Luther (profile), 21 Aug 2019 @ 7:45am

    If The Zep lose ...

    ...then would it set precedence that they can sue every other Rock and Roll band in the world?

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

  14. identicon
    Anonymous Coward, 21 Aug 2019 @ 8:07am

    Re: Re: You know what they say…

    ^ That one is hanging by a thread.

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

  15. identicon
    Anonymous Coward, 21 Aug 2019 @ 8:59am

    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 .

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

  16. icon
    Thad (profile), 21 Aug 2019 @ 9:11am

    Re: You know what they say…

    Even broken 24-hour clocks are correct once a day.

    I...can't say I've ever seen an analog 24-hour clock.

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

  17. identicon
    Anonymous Coward, 21 Aug 2019 @ 12:49pm

    Didn't there used to be a rule of 'seven notes in succession was the limit copyable? Anymore than seven notes played in succession was infringing on a song.

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

  18. icon
    Samuel Abram (profile), 21 Aug 2019 @ 4:02pm

    Re: Re: You know what they say…

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

  19. identicon
    Anonymous Coward, 22 Aug 2019 @ 9:40am

    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?

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

  20. identicon
    Anonymous Coward, 25 Aug 2019 @ 9:10pm

    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.

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

  21. identicon
    Maria, 29 Aug 2019 @ 1:18pm

    Great

    You have done great efforts to reach to your competitors but you need some more improvements.Why don’t you consult from https://edubirdie.net/ for best marketing tips?Yeah I think it can work for you.

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


Add Your Comment

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



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

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



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.