You've heard it, you likely love it, and it's probably the first melody that you ever tried to learn on the guitar to impress your friends. "Stairway to Heaven" has been called the greatest rock song of all time by music journalists and passionate listeners across generations. Led Zeppelin first released the song in 1971, although it took a couple of years before the hit rose to its current anthemic, almost mythical, status. That said, nearly 40 years after its iconic release, and after a 2016 jury trial that Rolling Stone magazine called the rock-and-roll trial of the century, the full 9th Circuit has cleared Led Zeppelin of alleged copyright infringement. In October, the Supreme Court denied the plaintiff's petition for certiorari.
In early March 2020, an en banc panel of the 9th Circuit rejected a high-profile copyright lawsuit alleging "Stairway to Heaven" infringed a 1967 instrumental called "Taurus" by the band Spirit. Skidmore, as Trustee for the Randy Craig Wolf Trust v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020). Within a few weeks, other courts began relying on the en banc decision to resolve similar infringement cases. The U.S. District Court for the Central District of California relied on Skidmore v. Led Zeppelin in ruling for defendants in cases involving Katy Perry (and others) and her hit song "Dark Horse," The Weeknd (and others) and the song "A Lonely Night," and Secret Garden's "You Raise Me Up." The U.S. District Court for the Southern District of New York also relied on Skidmore to limit the scope of a copyright claim against Ed Sheeran's Top 40 slam dunk, "Thinking Out Loud." The fact that other courts within and outside California have been so quick to follow suit after the "Stairway to Heaven" case shows the impact of the ruling. But what does the decision mean for copyright law within the music industry moving forward?
Basic Musical Building Blocks Cannot Be Protected
Skidmore follows several high-profile cases where copyright-infringement claims were successful based on the use of commonplace elements or even—as in the Blurred Lines case, where no two notes of the parties' works were the same—on the "feel" of the works. In a move many commentators say will prevent defendants from being saddled with endless lawsuits that stifle artistic creativity, the court in Skidmore made clear that copyright does not extend to "common or trite" musical elements. In other words, basic musical building blocks cannot be protected. Further, Skidmore not only identified specific examples of unprotected building blocks—such as a sequence of three notes and portions of musical scales—but precluded the use of a selection-and-arrangement of public domain elements theory when the public domain elements are only present and not arranged in a cohesive, original way.
The Inverse Ratio Rule Is Out
The court also overturned a long-controversial copyright law concept known as the "inverse ratio rule." Historically, the rule allowed a lowered threshold to show substantial similarity when a party can produce more evidence of the alleged infringer's access to its original work. Given the widespread nature of the internet, it has become easier for plaintiffs to show that the alleged infringer had access to their work. Getting rid of the inverse ratio rule in some ways responds to such changing dynamics in the music industry. Access alone has never been enough to win a copyright case; nevertheless, Skidmore makes it clear that attorneys still must do more to show substantial similarity between the original work and the allegedly infringing one.
Judges Have Discretion to Keep Out Sound Recordings
When the issue is whether a copyright in a musical composition is infringing, the judge has discretion to keep sound recordings out of evidence on the issue of access. That ensures that juries aren't confused by performance and other elements of the sound recording that are not in the musical composition itself. In Skidmore, the district court only allowed the jury to hear the parties' experts' stripped-back playing of the Spirit composition directly from the sheet music, rather than the full studio recording released to the public. The court reasoned that because the allegedly infringed copyright was the musical composition as memorialized in the sheet music that accompanied the "Taurus" copyright registration, it acted within its discretion in excluding the studio recording.
For defendants and their attorneys, Skidmore v. Led Zeppelin is a critical win. The ruling precludes the types of claims that led to Blurred Lines and other highly criticized cases and is an important step in avoiding the chilling effect of claims based only on the presence of musical building blocks used differently.
As U.S. Circuit Judge M. Margaret McKeown wrote, "The trial and appeal process has been a long climb up the Stairway to Heaven." Now, it looks like the climb is over (for now), and Led Zeppelin—as well as other similarly situated defendants—can enjoy the view from the top.
The Led Zeppelin defendants were represented by Peter Anderson of Davis Wright Tremaine.
* Jade Adia Harvey was a summer associate in Davis Wright Tremaine's Los Angeles office.