Led Zeppelin’s Copyright Battle of Evermore Concludes with Win

The band Spirit’s six-year copyright infringement case against Led Zeppelin ended with a whimper last week when the U.S. Supreme Court declined to grant certiorari to hear their appeal, effectively letting stand the Ninth Circuit’s March 2020 decision upholding the trial verdict for the Zeps.

The case was Skidmore as Trustee for Randy Craig Wolfe Trust v. Led Zeppelin, and centered around the opening chords of “Stairway to Heaven,” which the plaintiff (the trustee of the estate of Spirit member Randy Wolfe) alleged were taken from the late-1960’s instrumental “Taurus.” The Ninth Circuit’s en banc review which the Supreme Court let stand is notable for its analysis and rejection of the plaintiff’s arguments, particularly on the question of substantial similarity.

Skidmore’s copyright infringement claim was based on five musical elements and their combination: (1) a minor chromatic line and associated chords; (2) the duration of pitches of the minor chromatic line; (3) a melody placed over the descending chromatic line consisting of combination of arpeggios and two-note sequences; (4) a rhythm of steady eighth note beats; and (5) the pitch collection. The Court said that “a copyright plaintiff may argue ‘infringement … based on original selection and arrangement of unprotected elements.'” However, instead of making an argument that the same selection and arrangement of these musical elements was found in both “Taurus” and “Stairway,” Skidmore and his expert argued that the mere presence of the same musical components in both songs amounted to infringement.

The Ninth Circuit rejected the plaintiff’s insistence that they he made a selection and arrangement argument at trial, noting that their “framing” of the musical elements was “not a selection and arrangement argument,” because he “never argued how these musical components related to each other to create the overall design, pattern, or synthesis.” In fact, the Court noted that “Skidmore never once used the words “selection” or “arrangement” during trial.”

One notable issue that did not go Zeppelin’s way was whether they were entitled to attorney’s fees and costs as the prevailing party. The Ninth Circuit said the trial court did not abuse its discretion in declining to award attorney fees and costs, because the lower court determined that the balance of factors was basically even between the parties in its analysis. Given the fact that Zeppelin would have been on the hook for millions and millions of dollars in damages had it lost, they are probably just glad to get out of this one “alive.”

Photo by Heinrich Klaffs / CC BY-SA (https://creativecommons.org/licenses/by-sa/2.0)