And She’s Returning The Stairway … to HeavenOctober 12, 2018 | Michael C. Cannata | Frank M. Misiti |
While there may be a no-return policy on the stairway to heaven, no such policy exists with respect to returning a blockbuster jury verdict that dismissed a copyright infringement lawsuit against Led Zeppelin. To be sure, the U.S. Court of Appeals for the Ninth Circuit recently held that a new day will dawn by ordering a new trial based on several prejudicial errors made by the district court during the conduct of the trial.
As background, Led Zeppelin was sued for copyright infringement by the trustee for the Randy Craig Wolfe Trust, a trust that holds the intellectual property rights owned by Randy Wolfe, a former member of the band Spirit. Specifically, the trustee claimed that the opening notes of “Stairway to Heaven” are substantially similar to those of a Spirit song titled “Taurus.” After a high-profile jury trial that featured extensive testimony from the iconic rocker Jimmy Page himself, the jury returned a verdict in favor of Led Zeppelin.
But the trustee’s head was humming and it would not let the verdict go. The trustee filed an appeal in the Ninth Circuit challenging many of the rulings made by the trial judge. Specifically, the trustee challenged:
- various jury instructions;
- the district court’s ruling that substantial similarity must be proven using the copyright deposit copy;
- the district court’s ruling that sound recordings could not be played to prove access;
- the district court’s decision not to exclude Led Zeppelin’s expert;
- the fact that the full version of “Taurus,” rather than the bass clef version, was played in response to the jury’s request; and
- the imposition of strict time limits on the presentation of evidence as a violation of due process.
The Piper Is Calling for Better Jury Instructions
The Ninth Circuit concluded that the district court committed error by failing to instruct jurors that the selection and arrangement of otherwise unprotectable musical elements are indeed protectable. In fact, while both the trustee and Led Zeppelin advocated for instructing the jury on this issue, the district court decided not to issue any such instruction. The Ninth Circuit determined that the failure to provide this instruction was an error because it left the jury with the misimpression that the selection and arrangement of otherwise unprotectable musical elements are not copyrightable.
Next, sensing a bustle in the hedgerow, the trustee challenged certain jury instructions that addressed the originality requirement under U.S. copyright law, which requires that the work at issue was not copied and contains at least a minimal degree of creativity. At trial, the district court issued two different instructions addressing the originality requirement, which, in essence, erroneously instructed jurors that certain public domain elements, like chromatic scales, are not subject to copyright protection even if they are modified in some original, creative, manner. The Ninth Circuit held that the instructions concerning originality were prejudicial because such instructions undermined the trustee’s claim that “Taurus” and “Stairway to Heaven” were substantially similar.
Finally, the trustee argued that the district court committed error by refusing to issue a jury instruction on the “inverse ratio” rule. This rule dictates that where a defendant has greater access to the copyrighted work, there is a lower standard of proof needed to establish substantial similarity. While the Ninth Circuit did not conclude that such an instruction was necessary, in an attempt to get the district court to change the road it was on, it cautioned the district court to reconsider issuing such an instruction at the new trial.
The Sheet Music Defines the Scope of the Copyrighted Work
The trustee was also made to wonder about the district court’s decision to limit the scope of the copyright to the “deposit copy,” that is, the sheet music and not the actual sound recording of the song. But upon examination of the statutory history of the Copyright Act, the Ninth Circuit determined that under the 1909 Copyright Act, the deposit copy defines the scope of the copyright for unpublished musical works and it is not, as the trustee suggested, merely archival in nature.
The District Court Should Have Played “Taurus” before the Jury
Absent direct evidence, copying can be proven circumstantially by demonstrating that the: (i) defendant had access to the copyrighted work; and (ii) defendant’s work is substantially similar to the copyrighted work.
At trial, the trustee wanted to play “Taurus” during the examination of Jimmy Page in front of the jury to show that Led Zeppelin had access to the song. The trustee argued that playing “Taurus” would have allowed the jury to better assess Jimmy Page’s credibility. The district court, however, found that playing “Taurus” in front of the jury would have been prejudicial. Instead, the district court allowed the trustee to play “Taurus” for Jimmy Page outside of the presence of the jury and, thereafter, question him in front of the jury about the song.
The Ninth Circuit disagreed, but determined there was no need to be alarmed now as the district court’s error was harmless since the jury ultimately found that Led Zeppelin had access to “Taurus.” Nevertheless, it addressed this error because the same issue would likely occur during the new trial. Specifically, the Ninth Circuit concluded that “although the jury could still draw conclusions and inferences from Page’s demeanor during his testimony, allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions.”
The District Court Properly Allowed Led Zeppelin’s Expert to Testify
The trustee argued that the district court also abused its discretion by allowing Led Zeppelin’s expert musicologist to testify at trial. This argument was based on the fact that the expert was previously retained by an entity related to Spirit’s publisher to compare “Stairway to Heaven” to “Taurus.” Stated differently, the trustee argued that Led Zeppelin’s expert had effectively “switched sides.” The Ninth Circuit found that this argument rang like smoke through the trees for three reasons: (i) the motion to disqualify the expert was untimely; (ii) there was no evidence that the expert “switched sides;” and (iii) there was no showing that the expert had any of Spirit’s confidential information based on his prior engagement.
Final Considerations by the Ninth Circuit
Finally, the Ninth Circuit did not substantively address the trustee’s final two points of appeal. First, the Ninth Circuit concluded that, based on its disposition of the above-referenced issues, it did not need to consider whether the district court should have allowed the bass clef version of “Taurus” to be played to the jury. Second, while the Ninth Circuit did not conclude that the district court abused its discretion by imposing strict time limits in connection with the presentation of evidence, it called this practice into question based on the complexity of the case. And, in doing so, signaled to the district court that counsel should have ample time to wind on down the road.
- Michael C. Cannata
- Frank M. Misiti