Zeppelin Accuser Will Get Second Bite at Copyright Infringement Apple
The estate of the deceased guitarist from the band Spirit will get a second chance to prove that Led Zeppelin’s “Stairway to Heaven” infringed Spirit’s 1967 instrumental “Taurus” after the 9th Circuit Court of Appeals ordered a retrial.
A Stairway to Retrial
The 9th Circuit vacated in part the district court’s amended judgment, which was based on the jury’s verdict in the copyright infringement trial, and remanded because several of the jury instructions were “erroneous and prejudicial.” The appellate court also clarified some key issues for the lower court to apply if the case is retried. First, the court considered whether the scope of copyright protection for an unpublished work under the 1909 Copyright Act is defined by the deposit copy submitted upon registration of a work. And second, the court addressed Skidmore’s contention that the district court erred when it ruled that sound recordings of “Taurus” could not be played to prove access to the work.
Erroneous and Prejudicial Jury Instructions
Skidmore argued that district court erred by (1) failing to give an instruction that the selection and arrangement of unprotectable musical elements are protectable; (2) giving inadequate instructions on originality and protectable musical elements; and (3) failing to give an inverse ratio rule instruction.
The court said that the lower court’s failure to give an instruction on the selection and arrangement of unprotectable musical elements was reversible error, particularly in light of the fact that both parties submitted proposed instructions on the topic. However, the court “did not include either instruction in its final version of the instructions nor did it modify any of the substantive instructions to include this point.”
The court also took issue with the lower court’s instructions regarding originality. For example, the court cited Jury Instruction No. 16 from the trial, which included an instruction that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protected by copyright. However, the 9th Circuit panel held that “[t]his instruction runs contrary to our conclusion in Swirsky that a limited number of notes can be protected by copyright.”
Regarding the “inverse ratio rule,” the court found that failure to include an instruction on this issue was harmless error because the jury never reached the question of copying. Under the inverse ratio rule, a lower standard of proof of substantial similarity is required “when a high degree of access is shown.” However, because there was “substantial evidence of access” and copying was in question, the court said that on remand “an inverse ratio rule jury instruction may be appropriate.”
The Role of a Deposit Copy Under the 1909 Copyright Act
Skidmore argued that the district court erred when it excluded sound recordings of “Taurus” and ruled these recordings could not be used to prove substantial similarity. The court briefly reviewed the history of copyright in musical compositions going all the way back to the Copyright Act of 1790 and noted that the Copyright Office did not even accept sound recordings as deposit copies under the 1909 Act, the law in effect when “Taurus” was written.
After concluding that none of the authorities cited by the parties were relevant, the court said that for unpublished musical works under the 1909 Act, the deposit copy defines the scope of the copyright. This conclusion was reached by looking to the structure of the 1909 Act, which the court said demonstrated “that the deposit copy encompasses the scope of the copyright for unpublished works, as the deposit copy must be filed not only to register the copyright, but for the copyright to even exist.”
Use of Sound Recordings to Prove Access
Skidmore said the trial court abused its discretion by allowing Jimmy Page, but not the jury, to hear sound recordings of “Taurus” to prove access to the work. The 9th Circuit found that the district court abused its discretion in finding that “it would be unduly prejudicial for the jury to listen to the sound recordings in order to assess Page’s access to “Taurus.”” The court agreed with Skidmore’s premise that the court’s ruling decreaseed the probative value of Skidmore’s questioning of Page because the jury was not allowed to observe Page listening to the recordings, which would have “enabled them to evaluate his demeanor while listening to the recordings…” The court noted that a limiting instruction could have been given to prevent the jury from considering the sound recordings for the purpose of its substantual similarity determination.
No retrial has been scheduled yet.
