I’m not a judge. And I don’t play one on TV. And despite what I believed was a strong memorandum in support of summary judgment, District Judge Klausner denied the defendants’ motion and set the case for trial.
Recall that defendant’s motion set forth several bases to support the grant of summary judgment. Following is a summary of the Court’s analysis of the motion for summary judgment, and the reasoning applied in denying the motion. Remember that in ruling upon a motion for summary judgment, the Court will construe the facts in the light most favorable to the non-moving party, the plaintiff here.
The Court first reviewed the parties’ expert testimony as well as deposition testimony of other witnesses to address defendants’ three principal defenses: (1) abandonment/waiver, (2) laches, and (3) defective deposit copy.
Defendants argued that Randy Wolfe had clearly abandoned/waived any claims to infringement, as evidenced by a magazine interview he gave many years ago. But the court found evidence that Wolfe’s waiver may not have been heartfelt. For example, the journalist who conducted the interview testified that Wolfe never received or reviewed the interview notes before the article was published. Plaintiff also pointed to the tenor of the interview, which indicated that Wolfe felt cheated by Led Zeppelin and was merely trying to save face and made light of a bad situation.
NOTE: HEAVY LEGAL ISSUES AHEAD, INCLUDING SOME (OK, COPIOUS) VERBATIM TRANSCRIPTION OF THE ORDER. PLEASE PROCEED WITH CAUTION TO THE JUMP PAGE.
Additionally, Plaintiff submitted several pieces of evidence demonstrating that Wolfe acted in a manner inconsistent with an intent to abandon his rights. First, Spirit’s bass player from 1985 to 1988, testified that Wolfe told him that he was upset about the theft and wanted to sue, but was deterred and intimidated. Next, one of Wolfe’s longtime friends testified that Wolfe had been contemplating a lawsuit against Led Zeppelin for some time before his death.
Finally, Plaintiffs proffered testimony from an entertainment attorney in Chicago, Illinois, who testified that Wolfe came to see her in the 1990’s to inquire about the possibility of bringing a lawsuit against Led Zeppelin. The Court found a genuine issue of fact exists as to the abandonment defense and denied summary judgment on this basis.
Judge Klausner found the laches argument unpersuasive, and squarely governed by the Supreme Court’s recent decision in Petrella v. Metro-Goldwyn-Mayer, Inc., where the Court held that “[l]aches . . . cannot be invoked to preclude adjudication of a [copyright] claim for damages brought within the three-year [statute of limitations].” 134 S. Ct. 1962, 1967 (2014). Here, Plaintiff brought suit within the three-year retrospective statute of limitations, as Defendants released a new, remastered version of Stairway to Heaven in 2014. Id. at 1969 (“[E]ach infringing act starts a new limitations period.”). Regardless of plaintiff’s delay in bringing the action, the Court held that as long as defendants have committed an infringing act within the three years preceding suit, laches does not prohibit plaintiff’s claim for damages.
The Court also disposed of the “defective deposit copy” argument in short order. First, defendants failed to cite any case law holding that a missing seal from the Copyright Office invalidates a deposit copy or prohibits an infringement claim. In fact, the case law points in the opposite direction, as the Ninth Circuit has held that mistakes or omissions on copyright registration material do not invalidate a copyright absent detrimental reliance by the infringer or intentional fraud by the registrant. Here, defendants have not alleged or proven either detrimental reliance or intentional fraud. Accordingly, the Court rejected this argument.
Next, the Court addressed the arguments surrounding Wolfe’s (and by extension, the trustee-plaintiff’s) ownership of the copyright. Defendants had argued that neither Wolfe nor his trustee can sue for copyright infringement of Taurus because (1) the song was a work-for- hire owned by Hollenbeck Music, (2) Wolfe did not comply with statutory formalities to secure his federal copyright interest, and (3) Wolfe failed to timely respond to a discovery request, thereby conceding the work-for-hire issue.
Defendants argued that Wolfe had signed a songwriter agreement with Hollenbeck Music in August 1967, and that Taurus was therefore a work-for-hire; in fact, Hollenback had registered the copyright in Taurus as a work-for-hire. However, the Court found defendants’ reliance on the copyright registration certificates was misplaced. The plaintiff proffered sufficient evidence to rebut the presumption created by the registration certificates. For instance, the two surviving members of Spirit testified that Wolfe created the song Taurus before the August 1967 exclusive songwriter agreement. Wolfe’s sisters corroborate this point; they testified that in late 1966, Wolfe wrote Taurus for his high school sweetheart who would eventually become his wife.
Furthermore, according to a former member of Spirit, as well as Wolfe’s sisters, Spirit regularly played Taurus at the Ash Grove club in Hollywood in early 1967, before the songwriter agreement was executed. The Court found that plaintiff had marshaled sufficient evidence to create a triable issue of fact as to whether Wolfe composed Taurus before or after the exclusive songwriter agreement, a question that bears directly on the issue of whether Taurus is a work-for-hire. Therefore, summary judgment on this basis was improper.
Defendants posited that even if Wolfe had composed and performed Taurus live or recorded the song before August 29, 1967, he still does not own the copyright because he failed to comply with statutory requirements. It is undisputed that Wolfe did not personally comply with the statutory formalities. He did not publish copies of Taurus with proper notice, nor did he register and deposit copies of the unpublished musical composition with the Copyright Office. Therefore, Defendants maintained, federal copyright protection never actually vested until Hollenbeck registered Taurus with a deposit copy in December 1967.
Defendants’ argument presumes that Hollenbeck must have owned Taurus as a work-for-hire because the song was not registered until December 1967, well after the exclusive songwriter agreement. But, the Court found, that is not necessarily so. Assuming Wolfe did, in fact, compose Taurus before the August 1967 exclusive songwriter agreement, he acquired common law copyright protection from the moment of creation. Absent evidence that he somehow lost or transferred his rights, Wolfe continued to own the copyright in Taurus when the common law copyright divested and the federal copyright protection attached upon registration in December 1967. The mere fact that Hollenbeck registered Taurus and appears as “Copyright Claimant” on the registration certificate does not dispose of Wolfe’s ownership claim. An author who assigns his copyright in a work in exchange for royalties is considered a beneficial owner, while the assignee receiving title is deemed the legal owner of the copyright. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1144 (9th Cir. 2003) (defining a beneficial owner as “an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees.”). Assuming Taurus was included in the musical compositions that Wolfe assigned to Hollenbeck, Wolfe would have retained ownership as a beneficial owner, and the record company would have held title as legal owner. In such a situation, it would be entirely conceivable that Hollenbeck would register the song with both its name and Wolfe’s name on the certificate.
The Court found that Plaintiff had proffered sufficient evidence to create a genuine issue of material fact as to the ownership of Taurus.
Similarly, the “deemed admitted” argument under Federal Rule 36 (Admission of Facts) also failed. “The first half of the test in [Rule 36] is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). Here, upholding Plaintiff’s admission as to the work-for-hire issue would eliminate any presentation of the merits, as he would not have any standing to sue for copyright infringement. Therefore, the first prong had been satisfied.
The second prong requires the party relying on the deemed admission to prove prejudice. The Court found that defendants failed to carry their burden to show prejudice. For starters, at the time of the late response, defendants did not file a motion to compel or have the matter deemed admitted by the court. Defendants chose not to pursue such remedies during discovery. Beyond their inaction earlier in litigation, defendants have failed to show any real prejudice. According to defendants, in reliance on plaintiff’s admission, they chose not to depose certain individuals, like Spirit’s producer, about the work-for-hire issue.
However, the Court found that even if defendants had deposed Spirit’s producer and other unnamed potential deponents, they could not conclusively establish that Taurus was a work-for-hire in the face of plaintiff’s contrary evidence.
Defendants vigorously disputed that they had copied Taurus and urged that plaintiff had failed to offer any evidence of striking similarity. The Court agreed; however, the Court determined that plaintiff had successfully created a triable issue of fact as to access and substantial similarity.
While plaintiff’s experts opined that Taurus and Stairway to Heaven bear striking similarity; the Court disagreed. In the absence of striking similarity, plaintiff must show: (1) access and (2) substantial similarity to defeat summary judgment on the second element of his copyright claim. The Court found that plaintiff had demonstrated copying.
Proof of access is a necessary element of the substantial similarity claim and defendants contended that plaintiff produced no evidence to show that members of Led Zeppelin had any access to the Taurus song. The Court addressed each type of access:
- Direct Evidence of Access. The Court discounted defendants’ deposition testimony as hearsay that does not fall into any exception. The only remaining testimony is that Plant attended a Spirit concert in 1970. Plaintiff does not provide any evidence that Taurus was played at the 1970 concert; therefore, while Plant’s presence at the concert may be circumstantial evidence of access, it does not establish direct access.
- Circumstantial Evidence: Wide Dissemination. The Court also found that plaintiff had not proffered sufficient evidence to raise a triable issue of fact on the question of widespread dissemination.
- Circumstantial Evidence: Chain of Events. The second way a plaintiff can present circumstantial evidence of access is by demonstrating a chain of events between the plaintiff’s work and defendant’s access to that work. Here, the Court found purchase for plaintiff’s access argument.
The record conclusively established that Spirit and Led Zeppelin performed at the same music festival on the same day three times between 1968 and the release of Stairway to Heaven in 1971. The record further demonstrated that at two of these concerts, the Denver Festival and the Atlanta Festival, the two groups performed in succession. The only question for the Court, then, was whether this chain of events is sufficient circumstantial evidence to raise a genuine issue of fact about access.
Defendants contended that these three encounters, without more, are not enough for a reasonable juror to find that Led Zeppelin members had access to Taurus. For starters, defendants argue, Spirit rarely played Taurus in its performances between 1968 and 1971 because the goal of the tour was to promote its second album by playing new songs and old hits, which did not include Taurus. As further evidence that Taurus was rarely performed on tour, defendants submitted a set list from a February 1969 live Spirit performance, which included thirteen songs but no mention of Taurus.
Even if Spirit had performed Taurus at any of these festivals, defendants maintained, none of the Led Zeppelin members ever shared a stage with or heard any live performances by Spirit. According to Jimmy Page, while the two bands may have performed in succession on certain occasions, the process of dismantling and setting up equipment between acts generally took 15-20 minutes, meaning that bands would rarely spend time on stage together.
Beyond the interaction at the festivals, plaintiff introduced other evidence to create a triable issue of fact regarding access. First, to impeach Page’s testimony that he “has never seen Spirit perform live,” plaintiff submitted two interview excerpts in which Page admitted that he was a fan of Spirit and had attended several shows. Next, a surviving member of Spirit testified that Plant attended a Spirit show in February 1970 in Birmingham, England, and went out drinking with the Spirit members after the concert. Finally, the surviving members of Led Zeppelin admitted to performing a bass riff similar to one featured in one of Spirit’s hit songs, Fresh Garbage, a song that appears on the same album as Taurus. While they admitted to playing a similar bass riff, however, the Led Zeppelin members testified that they heard the song from either the radio or a compilation of assorted American rock songs, not from Spirit’s album.
Overall, the Court found that plaintiff produced sufficient circumstantial evidence to raise a factual dispute on the issue of access. Plaintiff presented evidence that both bands performed in succession and actually interacted at two festivals. Moreover, plaintiff submitted evidence that Spirit would often perform Taurus because it was arguably Wolfe’s favorite song. Beyond the two concerts, plaintiff also proffered evidence that Led Zeppelin played one of Spirit’s songs that appeared on the same album as Taurus. Finally, plaintiff presented impeachment evidence to counter Page’s declaration that he never saw a Spirit performance.
On the issue of substantial similarity, the parties submit dueling expert reports. Defendants attacked plaintiff’s expert reports on two bases: (1) the reports improperly consider unprotected performance elements of Taurus, and (2) once all the unprotected elements are stripped away, the remaining similarity is nothing more than a common descending bass line not entitled to protection. By analyzing performance elements in the sound recording of Taurus, plaintiff’s experts improperly considered features beyond the scope of the musical composition and the Court disregarded those features.
Once all the unprotected performance elements are stripped away, the only remaining similarity is the core, repeated A-minor descending chromatic bass line structure that marks the first two minutes of each song.
Defendants argued that the descending chromatic bass line is a centuries-old, common musical element not entitled to protection, and, therefore, plaintiff had failed to satisfy the extrinsic test. The Court disagreed. While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the Court found the similarities here transcended this core structure.
For example, the descending bass line in both Taurus and Stairway to Heaven appears at the beginning of both songs, arguably the most recognizable and important segments. Additionally, the descending bass line is played at the same pitch, repeated twice, and separated by a short bridge in both songs. The Court found that plaintiff had demonstrated “enough similar protectable expression here that the issue of substantial similarity should [proceed to the jury].” Accordingly, the Court denied summary judgment on this ground.
Will a looming trial be sufficient motivation to get the Zep defendants to the settlement table? Given the uncertainties of a jury verdict, they would be wise to consider resolving this one now.