If you’ve been following along, you’ll know that the estate of Randy California, the late leader of a band called Spirit, has been going after Led Zeppelin for ripping off a portion of an instrumental called “Taurus” for the opening segment of “Stairway to Heaven.”
Musicians around the world think this whole idea is insane. Can a standard guitar move–an arpeggio–be copyrighted by a single artist? Hell, no. That’s why 123 artists filed something called an amicus brief stating as much.
Now the US Government has weighed in on the side of Led Zeppelin with a 155-page document it hopes will clear up some of the interpretations and distortions on American copyright law that have been presented in this trial.
“This case concerns the proper application of the Copyright Act to a musical composition. The United States has an interest in the proper interpretation of the copyright laws, which foster innovation and creative expression by protecting the rights of authors to profit from their original works while simultaneously allowing the creation and dissemination of new works.
“The United States has a particular interest in this case because it concerns the legal effect of depositing a complete copy of a work with the Copyright Office, an agency of the federal government, as well as the standard for originality applied by the Copyright Office in examining and registering
Translation: “Let’s be very clear about how copyright is determined from a legal point of view.”
This next big gets to the meat of the situation:
[W]hether basic musical elements, such as a chord or chromatic scale, may ever be copyrightable, and whether the selection and arrangement of a small number of such elements can be entitled to only “thin” copyright protection, meaning that the copyright is infringed only by virtually identical copying.”
Translation: “Can you copyright the building blocks of Western music?”
A lot of legalese jargon follows, describing the finer points of copyright law laid down in 1909, 1972 and 1976 which involves how a musical work can be registered. In the case of “Stairway to Heaven” and “Taurus,” the official record is sheet music or “other visible notation.” In other words, something on a printed page.
Because both “Stairway to Heaven” and “Taurus” were written and released before 1976, the year when the Copyright Act was amended to include audio recordings, the only form of acceptable copyright registration is sheet music.
Translation: The two songs cannot by judged by just listening to them. The court has to look at how the music was written down.
In the case of “Taurus,” “The deposit copy did not specify the instrumentation or contain other markings specifying how the work was to be performed.”
Going deeper: “To establish infringement, plaintiff was not entitled to rely on “performance elements” that can be detected in recordings of the song (or would be present in live renditions) but that are not reflected in the sheet music deposited with the Copyright Office. SJ Op. 17 [ER 133]. For example, the ‘fingerpicking style, acoustic guitar, classical instruments
such as flute strings and harpsichord, atmospheric sustained pads and fretboard positioning,’ all of which could be discerned in recordings or performances of Taurus by Wolfe’s band, were not part of the deposit copy. Id. (quotation marks and ellipsis omitted). In addition, the ‘music [roduction and mixing process’ created a ‘common ethereal ambience’ that is not captured in the sheet music and thus not the proper basis of an infringement finding.
Translation: “The songs sound similar? Too bad. That can’t be used in this case because of when the songs were released. The sheet music rules.”
The government also found fault with how the appeal was handled. “The panel held that the district court erred in failing ‘to instruct the jury
that the selection and arrangement of unprotectable musical elements are
Translation: “You can only look at the sheet music, you dummies!”
Then we have this: “Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a “thin”
copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court’s judgment should be affirmed”
Translation: “Sorry, Spirit. You’re screwed.” Or, as they say in the summary “Plaintiff’s contrary arguments are without merit.”
Why should we care about what happens in this case? It’s this whole idea of “thin copyright” and the ability of one composer to claim domain over basic musical moves that should be available to everyone. This could have an impact on everything from the “Blurred Lines” case to Katy Perry’s recent loss over infringement with “Dark Horse.” Ed Sheeran’s people are waiting on the sidelines to see how this trial will pan out before they mount a defense in a copyright infringement charge filed against Ed.
One caveat: This amicus brief from the US Government is just that: advice and interpretation given to the court in charge of this case. It is not in any way a ruling. What that court does with this document remains to be scene.
If you want to read the entire document, email me at [email protected]
(Thanks to Pamela for her continuing help with this. These cases are hugely important to the future of music.)