An Interesting Consideration for the Led Zeppelin “Stairway to Heaven” Plagiarism Trial

If you’ve been following this story, the accusation is that Jimmy Page lifted material for “Stairway to Heaven” from a 1967 composition by Spirit called “Taurus.”  Let’s compare them one more time, paying close attention to the arpeggio guitar first heard in the intro “Stairway” and the similar parts heard in “Taurus.”

Got that? Now forget everything you’ve just heard. This NOT what will be presented to the jury–and this is where it gets interesting. Here’s the court order:

In its order denying Defendants’ motion for summary judgment. This Court held that “Plaintiff’s only copyright claim lies in the musical composition of Taurus, not the sound recording.” (Order Den.Def.s’ Mot. Summ. J. 17, ECF No. 159.) In light of this Order, Defendants have filed a Motion in Limine seeking to exclude all of Plaintiff’s experts because they analyzed only the Taurus sound recording—not the musical composition. Plaintiff acknowledges that its expert reports considered only the Taurus sound recording but argues that these reports are admissible because “an expert may refer to the sound recording as long as the expert is clear that the compositional elements in question are represented in some way in the deposit copy.” (Pl.’s Opp’n to Def.s’ Mot. In Lim. No. 4, ECF No. 170.)

Because the deposit copy of Taurus registered with the Copyright Office is sheet music for the piano, Plaintiff’s experts naturally relied on the Taurus sound recording to determine the melody, rhythm and other protected elements of the musical composition as played on the guitar. In doing so, however, Plaintiff’s experts impermissibly analyzed unprotected elements not embodied in the musical composition (e.g., flute, recorder, fretboard positioning). Therefore, Plaintiff’s expert reports are inadmissible in their present condition because they considered unprotected elements contained only in the sound recording. If Plaintiff wishes to introduce expert testimony at trial, it must submit reports completely purged of any reliance on the unprotected performance elements in the sound recording. Any comparison analysis must consider only the protected elements represented in the musical composition.

Should Plaintiff choose to submit new expert reports, he must do so within FIVE DAYS of this order.

IT IS SO ORDERED.

In plain English, this means that the judge wants both sides to use what is copyrighted–written down–which is different from the audio version. In other words, no evidence will be presented that purports to show that the sound recordings are similar because there are other music elements surrounding the contested parts that aren’t copyrighted. It all comes down to the actual notes, not how the notes were recorded and augmented in the studio.

Instead of the jury being played both sound recordings and asked to make a judgement on whether or not a ripoff occurred, they will hear piano renditions of both–the copyrighted notes. The Hollywood Reporter has this:

Those who have listened to Spirit’s “Taurus” and hear similarity to the opening guitar riff in “Stairway to Heaven” might expect Led Zeppelin to be in trouble at a copyright trial scheduled for May 10. However, don’t bet against Led Zeppelin just yet. On Monday, the defendants scored some key victories that will severely limit the testimony and evidence heard by a jury.

Perhaps most important, U.S. District Judge R. Gary Klausner has decided to exclude many of the “Taurus” sound recordings that the Randy Craig Wolfe Trust (which counts itself as a beneficial owner of Spirit member Randy California’s works) wanted to play for the jury. The “Taurus” copyright is limited to what was deposited with the Copyright Office in 1967 and so the judge has agreed with Led Zeppelin that the only recordings to be presented for the jury’s ears are the ones transcribed from the copyrighted sheet music.

What’s more, the judge has rejected all of the plaintiff’s experts because these musicologists prepared their reports and opinions by relying upon sound recordings that embodied unprotected performance elements.

That’s not to say for sure that the Randy Craig Wolfe Trust won’t have any experts testifying. Judge Klausner has given the plaintiff five days to submit new expert reports “purged” of what’s unprotected.

Crazy? Maybe, but such is copyright law. This, by the way, is the same criteria by which “Blurred Lines” was determined to be a ripoff of “Got to Give It Up.”

Thanks to LA correspondent Pamela Chelin who is covering this trial. Read what she and her partner have written today about the case in The Wrap.

 

 

Alan Cross

is an internationally known broadcaster, interviewer, writer, consultant, blogger and speaker. In his 30+ years in the music business, Alan has interviewed the biggest names in rock, from David Bowie and U2 to Pearl Jam and the Foo Fighters. He’s also known as a musicologist and documentarian through programs like The Ongoing History of New Music.

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