04 Dec Stairway To Heaven, Or Stairway To Copyright Infringement?
By Alan Brandt
Led Zeppelin may be headed back to court to defend its hit song “Stairway to Heaven” after a 9th Circuit decision ordering a new trial, but not if the Recording Industry Association of America has anything to do with it. In 2014, the famous rock band was accused of stealing a guitar arpeggio from “Taurus”, a song from the late 1960s by the band Spirit, and using it in the introduction of “Stairway to Heaven.” The district court found in favor of Led Zeppelin and determined there was no copyright infringement. In September 2018, the 9th Circuit Court of Appeals ordered a new trial after concluding that the trial judge’s instructions to the jury were improper. However, the Record Industry Association of America (RIAA), joined by the National Music Publishers Association, recently filed an amicus brief in support of a petition for the appellate court to rehear the case en banc, reverse its decision granting a new trial, and ultimately affirm the trial court’s finding on noninfringement.
In the brief filed on November 5, 2018, the RIAA alleged that the 9th Circuit’s decision “badly overprotects” copyright law and called for a balance to prevent both overprotection and underprotection. Specifically, the brief stated, “[c]omposers’ intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed.” The RIAA is known for being an advocate for strict intellectual property rights, so it is somewhat of a surprise that it wants to uphold a finding of noninfringement. However, this interest is based on the long-term effect this case could potentially have on the overprotection of copyrights.
The RIAA is asking the 9th Circuit to do three things— 1) reconsider its order that the district court apply the inverse ratio rule on remand; 2) reverse its holding that uncopyrightable elements can be combined and receive copyright protection in the resulting arrangement or composition; and 3) reverse its decision granting a new trial. In doing so, the Association hopes the court will affirm the holding of the district court and maintain that Led Zeppelin did not infringe Spirit’s copyright.
When attempting to prove copyright infringement, the copyright owner must show that 1) the alleged infringer had access to the work allegedly copied, and 2) the infringed work and allegedly infringing work are substantially similar. The inverse ratio rule allows a lower standard of proof for the second requirement if it is very likely the first requirement is met. In other words, if the copyright owner can show that the alleged infringer had a high degree of access to the infringed work, the owner doesn’t need to show such a high degree of substantial similarity between the two works. The RIAA claims this rule “confuses more than it clarifies” and can lead the jury to make unfair determinations.
In support of its position on the inverse ratio rule, the RIAA points to three Circuits that have explicitly rejected it for being too confusing for jurors to accurately interpret. It also states that, because “high degree of access” isn’t defined, it’s a vague concept that leads to even more inconsistency. For example, does high degree of access mean access could have been easily obtained? Or does it mean the composition in question was accessed at a high degree? Either way, the argument is that the degree of access should not determine the weight given to the substantially similar requirement, as both requirements are independent of each other but vital to the overall analysis.
The district court also provided the jury with instructions that explained that common musical elements are not protected by copyright law. The RIAA’s brief attributes this to the fact that there are only a “finite number of notes” and a limited number of ways these notes can be combined. Therefore, “short common combinations of notes” cannot be protected as to prevent other composers from using them. The appellate court, on the other hand, determined that a selection or arrangement of otherwise unprotectable musical elements can indeed be protected. Thus, the 9th Circuit held a song can contain various common notes, but if they are combined in an original way, they are copyrightable.
The RIAA cited in its brief several decisions by the 9th Circuit explaining that works involving unoriginal elements are to receive thin copyright protection. Though these decisions were directed toward visual artworks, such as sculptures and photographs, the RIAA claims the court should apply the same analysis to musical compositions. In doing so, “genuinely creative contributions will remain protected” and works undeserving of protection will not. The district court judge, according to the RIAA, therefore gave the proper jury instructions.
Finally, the RIAA asserts that by not allowing the jury to hear recordings of both “Stairway to Heaven” and “Taurus” during trial, the judge acted in accordance with the Federal Rules of Evidence, thus attempting to keep the trial fair. The 9th Circuit panel hearing the appeal, however, disagreed. The district court had the parties listen to the songs outside the presence of the jury in order to not misconstrue the jurors’ opinion, as even limiting instructions often do little to prevent unintentional prejudice. The appellate court, on the other hand, stated that by allowing the jurors to observe the parties listen to the songs and their demeanors while doing so, they may be able to better evaluate the situation.
Average jurors rarely have the requisite life experiences to accurately evaluate the demeanor of musicians as they listen to music, the RIAA brief states. Because of this, the jurors in the case at hand were unlikely to learn anything by watching the parties listen to the songs. What was likely to happen, however, the RIAA believes, was the jurors would give unfair weight to the similarities between the songs and not weigh all the evidence evenly as a whole.
The next step in the case will be the 9th Circuit either granting or denying the petition for a rehearing. If granted, the appeal will be en banc, which means it will be heard by the all the judges of the 9th Circuit. If denied, however, the case will proceed on remand back to the district court for a new trial.