March 13, 2020 (Updated March 25, 2020)
Earlier this week the 9th Circuit brought to a close the latest round of appeals and opinions in the long-running copyright infringement case of Michael Skidmore vs. Led Zeppelin et al. regarding Led Zeppelin’s epic hit, Stairway to Heaven, finding in favor of Led Zeppelin. (Read the opinion here.) The ruling, which will have wide-ranging impact for today’s music attorneys and songwriters, turned on technicalities involving the US Copyright statute enacted over 100 years ago, copyrightable elements in musical compositions, and how the concepts of similarity and access interact in an infringement analysis. This case couldn’t come down at a better time.
Starting with the Blurred Lines case, a recent glut of increasingly preposterous opinions involving copyright infringement of musical compositions in the 9th and other circuits have come down as plaintiff’s attorneys become more creative and experts chop up compositions into tiny digestible math problems in order to illustrate infringement to under-educated jurors and judges. Previously this circuit has flirted with the adoption of a scénes á faire doctrine in music, [see: Smith v. Jackson, 84 F3d 1213 (9th Circ. 1996); Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004); Morrill v. Stefani, 338 F.Supp.3d 1051 (C.D. Cal. 2018)], and now this latest ruling has ratified this doctrine’s underlying concept by stating that musical “building blocks” belong in the public domain and thus are excluded from a substantial similarity analysis.
Commencing in 2014, the Skidmore lawsuit alleges that Robert Plant and his Zeppelin band-mates ripped of a composition by Randy Wolfe, p/k/a Randy California, member of the 60’s band Spirit and composer of Spirit’s 1968 song Taurus. Wolfe died in 1994 and subsequently Skidmore became a trustee of a trust that controlled the composition Taurus, so Skidmore brought this suit.
Although Spirit and Zeppelin developed on either side of the pond, they performed in the same venues in the years leading up to the release of Stairway to Heaven and Zeppelin even covered a Spirit tune called Fresh Garbage. Plant also admitted that he owned the album by Spirit on which Taurus was released, so there is no doubt that Plant and his band-mates were aware of Wolfe, Spirit, and possibly even Taurus. The question then for the jury and subsequent en banc panel was whether Zeppelin copied portions of Taurus when they wrote Stairway.
Copyright, Music, and Infringement Fundamentals
Whenever a listener hears a piece of recorded music today, that listener is hearing two distinct copyright-able works: the sound recording and the musical composition (i.e. what you see in lead sheets or written music). Musical compositions have been eligible for Federal copyright protection since 1831, but sound recordings were not eligible for Federal copyright protection until 1972. Since the sound recordings in this case are too aged to be eligible for copyright protection, at issue here are the underlying musical ideas as embodied in the compositions.
In order to prove copyright infringement, a plaintiff must first establish that they have a valid copyright. A work is eligible for copyright protection if it has some “minimal degree of creativity” and it is fixed in a tangible medium. Feist Publications, Inc. v. Rural Tel. Service Co. 499 U.S. 340 (1991); 17 U.S.C. §102. If eligible, a work is copyrighted the moment it is fixed, but savvy litigators know that in order to file an infringement action a plaintiff must have either applied for registration or had its application rejected, which has been true in all circuits for the last year after the Supreme Court’s 2019 ruling in Fourth Estate Publish Benefit Corp. V. Wall-Street.com, LLC.
Once a plaintiff has established the validity of their copyright, they must prove that the defendant copied protected aspects of their work and that there is “substantial similarity” between the protectable elements of the two works. In the 9th Circuit finding substantial similarity involves a two-part test: an extrinsic test and an intrinsic test. The intrinsic test compares the similarity of expression from the viewpoint of the ordinary reasonable observer (no expertise necessary). However the extrinsic test, a major focus of the Zeppelin decision, compares objective similarities of specific expressive elements in works at issue. In these kinds of cases finding objective similarities often involves analysis by professionals, which keeps musicology and music history Ph.D.’s employed. A defendant’s work must pass both tests before infringement is found.
Demise of the Inverse Ratio Rule
Before this latest ruling, the 9th Circuit recognized judge-created law called the inverse ratio rule, which lowered the standard of proof for substantial similarity when a high degree of access is shown. However, Judge McKowen rebuked this rule in her opinion by writing that the rule is “not part of the copyright statute, defies logic, and created uncertainty for the courts and the parties…” further criticizing it because it conflates the issues of copying and similarity. Moreover, the ruling pointed out that access to copyrighted works is easier to come by today than at any other point in history due to the Internet’s support of our streaming and downloading habits. The court stated that continuing to adopt this rule could allow trivial showings of availability to dilute the issues of substantial similarly and unfairly benefit those with highly popular works. In a power-to-the-people moment, McKowen stated that “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.” (Right on, sister.)
This means that the inverse ratio rule is now only good law in the 6th Circuit, so plaintiff counsel may want to start looking for clients in Nashville’s music row if they want to continue to take advantage of that particular rule.
Scénes a Fáire and Musical Building Blocks
As explained above, only the composition’s copying was at issue here since the sound recordings were not eligible for copyright at the time that Taurus and Stairway were released. The plaintiff alleged that Zeppelin’s infamous opening guitar solo riff infringed a section of the Taurus composition. This means that the alleged copying was only with regard to either song’s introductions, which is six seconds out of four and a half minutes on the Taurus recording. Specifically, Skidmore alleged that Zeppelin copied the following elements from Taurus: “minor chromatic line and associated chords; duration of pitches of minor chromatic line; melody placed over the descending chromatic line consisting of combination of arpeggios and two-note sequences; rhythm of steady eighth note beats; and pitch collection.” Music nerds who also read the law collectively drooled when the court included this side-by-side transcription of the sections at issue in this latest opinion on page 13:
The above includes a reproduction of the Taurus deposit copy, which was what was submitted to the copyright office when Wolfe’s publisher registered the composition for copyright in 1968.
Since the average juror is unlikely to be musically literate to the degree that they could analyze and compare sheet music, this case also involved an argument over whether the jury should be allowed to listen to the sound recordings of the compositions at issue. The en banc opinion found that the lower court properly excluded the sound recordings, although the lower court did allow a guitarist to play in the courtroom so that the jury could hear and understand the sweet licks at issue without the pain of a formal music education.
Unfortunately for the plaintiff, the deposit copy lead sheet is tragically under-representative of the fully orchestrated and performed version of Taurus and does not, when played against the transcribed relevant portion of Stairway, sound substantially similar. The only major similarities between the Taurus deposit copy and Stairway are the note combinations A-B, B-C, C-F#, arpeggios, and what the court called a “descending chromatic scale,” or what jazz and pop musicians call a line cliché. (In case anyone was wondering: this is called a cliché because it is woefully common.) A few famous examples in the canon include: Fugue 10 in E minor (Bach), My Funny Valentine (Rodgers/Hart), Blue Skies (Berlin), Satin Doll (Ellington), and Something (Harrison). Furthermore, arpeggios, or broken chords, are as common as weeds in all forms of music. Finally, the A-B-C-F# line, while delicious due to its final tritone interval, or “devil’s note”, is not protectable under current case law because it is too common a musical trope to be eligible for copyright protection. See: Morril v. Stefani. The Copyright Office also states that a three-note phrase does not meet the “quantum of creativity” required for protection, so it is not a big stretch to say that a four-note phrase does not meet this standard, either. Copyright Office Compendium, § 313.4(B)(3d ed. 2017).
In infringement cases involving other forms of art, courts have applied the scénes á faire doctrine to literary works, films, and even software since it originated in Cain v. Universal Pictures Co., 47 F. Supp. 1013 (S.D. Cal. 1942). This doctrine defines scénes á faire as stock or standard features commonly associated with the treatment of a given subject and are not protectable under copyright, which means that potential infringers cannot be held liable for use of such elements. With apologies to my musical colleague jazz pianist Justice Arthur Gilbert, it is safe to assume that most of the judiciary possesses a great depth of literary knowledge while simultaneously lacking the thousands of hours of practice necessary to obtain similar musical literacy. It makes sense then that this judicial doctrine, first created for literature, took its time to be similarly applied to the abstract musical ideas at issue in cases like Zeppelin. While this case is not an explicit adoption of the scénes á faire doctrine in music, it captures the spirit of the doctrine and should help put nervous music theoreticians, songwriters, and major music companies at ease knowing that the use of common musical clichés will not expose financially successful members of the art form to liability.
Here the court found that plaintiffs “cannot establish substantial similarity by reconstituting the copyright work as a combination of unprotectable elements and then claiming that those same elements also appear in the defendants work, in a different aesthetic context.” It went on to say that “authors borrow from predecessors’ works to create new ones, so giving exclusive rights to the first author who incorporated an idea, concept, or common element would frustrate the purpose of the copyright law and curtail the creation of new works.”
This ruling is going to have major bearing on Marcus Gray v. Katy Perry, currently on appeal in the 9th circuit after a $2.8 million award was levied against Perry when a jury found that she and the co-writers of Dark Horse copied a four-note phrase from the plaintiff’s Christian rap hit Joyful Noise. The finding relied on the inverse ratio rule, and the four-note phrase in question appeared identical on paper save for one hairy detail: the key signature. It is therefore unlikely the jury’s award will be able to withstand the higher court’s elimination of the inverse ratio rule and its guidance on musical building blocks and aesthetic context. [3/25/20 Update: on 3/16/20 A California Federal Judge overturned the jury award in this case and entered judgment as a matter of law in favor of the defendant, Perry.]
One of my music instructors, eminent tubist Jon VanHouten, advised that “amateurs borrow, professionals steal,” which is a quote first attributed to T.S. Elliot and subsequently paraphrased by John Lennon. Thankfully, the court has adopted a position that will allow creators to continue to use common musical building blocks and “steal” from their predecessors without fear of litigation. But then again, if you’re successful enough to get sued, then some might call you the lucky one.