You remember, Randy (“California”) Wolfe’s trustee sued Led Zeppelin, claiming Zep copped the intro section of Stairway from the song Taurus, performed by Spirit. Things have been moving right along.
When we last checked in on the case, the trial judge, Hon. Juan R. Sánchez, had permitted venue to remain in Pennsylvania. But in May 2015, Judge Sánchez entered a final order on defendants’ motion to transfer venue, and found that the individual defendants (Messrs. Plant, Page and Jones) lacked sufficient minimum contacts with Pennsylvania to justify retaining venue. Judge Sánchez transferred the case to the Central District of California.
The parties skirmished back and forth through the discovery phase. On February 25, 2016, the Led Zeppelin defendants fired off a motion for partial summary judgment. The memorandum in support of the motion sets forth some pretty persuasive arguments for granting summary judgment in their favor. WARNING: REVIEW OF DENSE LEGAL THEORIES FOLLOWS. BUT IT’S STILL INTERESTING.
Consider defendants’ main arguments (consult the memorandum for citations):
- Taurus is a work-for-hire, owned by a non-party, and Wolfe (more properly, his trustee) cannot sue for copyright infringement. In 1967, Wolfe entered an Exclusive Songwriter Agreement, as well as a recording contract, with Hollenbeck Music as a “‘writer for hire’ . . . with full rights of copyright renewal vested in Hollenbeck.” [citations omitted]. Hollenback registered the copyright in Taurus, which was included on Spirit’s eponymous first release. What’s more, plaintiff is deemed to have admitted that Taurus is a work-for-hire on account of his failing to timely respond to a request to admit this fact. R. 36(a)(3).
- Even if Wolfe has an infringement claim, he expressly waived it. “In 1991, Wolfe was interviewed in connection with a new album, titled Time Circle, of Spirit recordings. In that recorded interview, he described a claim he was pursuing that Cheap Trick’s Robin Zander had copied Wolfe’s Nature’s Way. When asked about Stairway, Wolfe stated he was not bothered by it, that he considered Led Zeppelin’s members friends, that ‘if they wanted to use’ Taurus ‘that’s fine,’ ‘I’ll let them have the beginning of Taurus for their song without a lawsuit’ and ‘I’m letting them off the hook.’ His statements were repeated in a booklet in the Time Circle album released to the public in 1991.” [citations omitted].
- Laches bars the claim. The infringement claim arose in 1971, when Zep released Led Zeppelin IV, which included Stairway; the lawsuit was filed forty-three years later, a delay that defendants say is a tad unreasonable and a mite prejudicial. The prejudice against the defendants is strong. After all, “[s]ince 1971, Wolfe and many other important witnesses have died, and set lists, recordings and other documents have been lost or stolen. While that alone establishes the required prejudice, ‘[a] defendant may also demonstrate prejudice by showing that it took actions or suffered consequences that it would not have, had the plaintiff brought suit promptly.’ Substantial expense was incurred in 2012-14 in the remastering and re-release of Led Zeppelin recordings, including Stairway.” [citations omitted].
- And even if plaintiff overcomes these “technical” hurdles, there is no evidence of copying. Herewith, a brief primer on proving copyright infringement where there is no evidence of direct copying.
Where there is no direct evidence of copying (like Wolfe sitting down with Page and teaching him Taurus), the plaintiff must present admissible evidence of either (1) “striking similarities” or (2) “access” plus substantial similarities between Stairway and the copyrighted Taurus composition.” In deposition testimony, plaintiff’s expert musicologist did not claim there were “striking similarities” between the songs. Therefore, plaintiff must prove that Zep had access to the Taurus recording and that there are “substantial similarities” between the two.
“To prove access, plaintiff must present evidence proving that the creator of the defendant’s work had more than a ‘bare possibility’ to copy the plaintiff’s work. Access is proven ’either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that the plaintiff’s work has been widely disseminated.’” There is no credible evidence that Zep had access to the song (it was not widely released, there was no evidence of record sales and it was seldom played on the radio or in concert). This failure of proof is enough to defeat the infringement claim, but defendants offer more: the songs are not even “substantially similar.” [citations omitted].
“To determine whether two works are substantially similar, a two-part analysis – an extrinsic test and an intrinsic test – is applied. For summary judgment, only the extrinsic test is important.” The extrinsic test requires ‘analytical dissection of a work and expert testimony.” [citations omitted].
“‘Analytical dissection’ requires breaking the works ‘down into their constituent elements, and comparing those elements for proof of copying as measured by ‘substantial similarity.’ Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff’s work. [E]xpressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law.” [citations omitted].
“The similarity between Taurus and Stairway is limited to a descending chromatic scale of pitches resulting from “broken” chords or arpeggios and which is so common in music it is called a minor line cliché. Both sides’ experts have identified multiple similar compositions that predate Taurus by years, decades and centuries, and agree that the descending line and arpeggios are public domain. Copyright Office Compendium § 802.5(A) (chromatic scales and arpeggios are “common property musical material” in the public domain).” [citations omitted].
When we disregard the minor line cliché, which is the first thing that hooks us when listening to Stairway, there is nothing left that is substantially similar – the songs’ structures are markedly different and apart from the minor line cliché, there are no other harmonic or melodic similarities.
The trial judge denied the motion for summary judgment; a review of the order denying summary judgment is forthcoming. A jury trial is set June 14, 2016. Stay tuned.