You’ll recall that the estate of Randy California (né Randy Craig Wolfe, guitarist and songwriter from the 70’s art-rock band, Spirit) has sued Led Zeppelin in Pennsylvania, claiming that Zeppelin copped the opening guitar riff and chord progression from Wolfe’s song, Taurus, to create perhaps the most iconic of all rock songs, Stairway to Heaven. Why sue in Pennsylvania, you may ask?
That’s also the question that Led Zeppelin asked district judge Juan Sanchez. Zep’s first response out of the gate was to move to dismiss the suit, or at a minimum to transfer the venue to the Central District of California – by consent of the defendants – where at least one of the defendants (Warner Music Group Corp.) resides. Led Zeppelin, the band, as well as the individual members of the group, is represented by Helene Freeman, of NYC’s venerable Phillips Nizer, and local counsel, Michael Eidel of Fox Rothschild.
After defendants’ motion to dismiss or transfer venue was filed, the plaintiffs, represented by Philadelphia lawyer, Francis Malofiy, amended the complaint to assert additional factual allegations intended to show a Pennsylvania nexus as to the defendants. “Defendants are subject to specific jurisdiction in this district,” Malofiy asserts, ” because they make millions of dollars from the Eastern District of Pennsylvania by directly targeting this district for the exploitation of ‘Stairway to Heaven’ through CD sales, digital downloading, radio and television play, advertising, marketing, concert performances, other performances, licensing, and otherwise targeting resident individuals and businesses to profit off the exploitation of ‘Stairway to Heaven.’”
Two days following plaintiff’s amended complaint, in a terse order, the district court ruled in favor of the plaintiff at this juncture, denying Zep’s motion to dismiss or transfer venue, without prejudice to defendants’ right to raise the motion again at a later date.
Because the nominal plaintiff, trustee Michael Skidmore, is a Massachusetts resident, and the Randy Wolfe Trust is located in California, it seems clear that plaintiff filed the case in Pennsylvania because that’s where Mr. Malofiy, plaintiff’s counsel, resides. You see, Malofiy could face obstacles in becoming admitted pro haec vice in another state, like California, in order to continue to prosecute the suit. Malofiy was recently sanctioned for professional misconduct by another district judge. In that case, the district court found that Malofiy had “behaved in a flagrantly unprofessional and offensive manner,” by inveigling an exculpatory affidavit from an unrepresented defendant and, after falsely assuring that defendant that he was only a witness in the case, entering a default judgment against the defendant. Judges frown on this type of conduct.
Following plaintiff’s rationale, the suit could have been brought in any State, because there is certainly no State where Led Zeppelin is not “targeting resident individuals and businesses to profit off the exploitation of ‘Stairway to Heaven.’” This is a high-profile case, and there are miles to go before it sleeps, but could it be the judge wants to retain jurisdiction because of the sensational nature of the case? We’ll see how it goes the next time Zep asks for the change of venue.