What if thousands of songs under copyright turned out not to be? Would that mean that iconic tracks are up for grabs? Maybe.
We’ve all heard about how Composer A sues Composer B over a song that sounds took much like something Composer A already released. These plagiarism/copyright infringement cases have ramped up in recent years (Tom Petty vs. Sam Smith, Robin Thicke vs. Marvin Gaye, Radiohead vs. Lana Del Rey, and so on.)
One case that keeps coming back is Led Zeppelin vs. Spirit, the notion that “Stairway to Heaven” is a ripoff of an instrumental called “Taurus.” It’s alleged that Jimmy Page heard the arpeggio opening of “Taurus” and turned that into the opening bits of “Stairway.”
This is a big deal given that the value of “Stairway to Heaven” is pegged at somewhere around US$500 million.
The first time the case came to trial back in 2016, it was thrown out. But now a new trial has been ordered, one that will focus on certain elements of copyright, specifically something that applies to songs released prior to January 1, 1978.
This is where things get seriously weird. Ultimate Classic Rock reports on something that happened during the first trial:
“It was an exchange that went largely unremarked upon at the time: [Spirit attorney Frances] Malofiy asked [Jimmy] Page to point to protected elements – including that intro – in the “Stairway to Heaven” deposit copy, which was listed as Exhibit 2708. Page was forced to admit that neither the concluding solo nor the disputed intro were there. ‘That’s not represented in the deposit copy?’ Malofiy reiterated, to which Page said, ‘No. You’re correct.'”
“So, maybe none of it was copyrighted in the first place? Malofiy decided to appeal, and the 9th U.S. Circuit Court of Appeals in San Francisco agreed that the matter should be looked at more deeply. The only court-requested briefs so far relate to deposit copies, according to a new report by Bloomberg‘s Vernon Silver.”
“Silver visited the U.S. Copyright Office, where paperwork for songs from before 1978 is still filed in an old-fashioned card-catalog system. What he found was shocking: Deposit copies there did not include transcriptions for the dueling guitar finale on Eagles‘ ‘Hotel California,’ the iconic Clarence Clemons sax solo from Bruce Springsteen‘s ‘Born to Run’ or Ray Manzarek’s rain-like turn on the Fender Rhodes from the Doors‘ ‘Riders on the Storm.‘”
Uh-oh. Does this mean that Led Zeppelin is in a no-win situation? Sure, “Stairway” is protected, but so is “Taurus,” which is the older of the two compositions. And what will that mean for the outcome of this trial?
Bloomberg has picked up this same thread.
“’I’d like to pull up Exhibit 2708, which is the Stairway to Heaven deposit copy,’ he told the court. The sheet music appeared, projected on a screen between Page’s witness stand and the jury box. ‘Can you point to where on the deposit copy of Stairway to Heaven it indicates the solo?’ Malofiy asked, referring to the electric guitar finale that’s considered one of Page’s crowning achievements.
“’I’ll have to have a look,’ Page said, then scanned the first bit. ‘Um, I think you need to scroll down one more.’ The second folio came up on the screen. ‘Please scroll one more,’ he said as more music appeared. ‘Please, one more,’ he said again as the fourth and final bit came up. ‘OK. That’s it. I’ve read it.’
“’You would agree that there’s no solo on the deposit copy … of Stairway to Heaven, which was deposited with the office?’
“’Yeah, we—I agree with that. It’s not in there, no,’ Page said.
“Malofiy then pointed to the first measure. On the record, Stairway begins with a finger-picked introduction—one of the most recognizable musical passages of the past half-century, mimicked by millions of aspiring guitarists. That iconic intro, Malofiy said, ‘That’s not represented in the deposit copy?’
“’No,” Page said. “You’re correct.’”
“Sitting in the courtroom that day, I couldn’t believe what I was hearing. Were some of the most famous passages in rock history really not protected by copyright? And did this also apply to any number of other songs whose deposit copies were certainly equally lacking? I felt as if someone had dropped $100 bills on the ground. Countless unregistered bits of song—guitar solos, bass lines, horn parts, background vocals—could be sitting out there exposed to unscrupulous financial exploitation. Ring tones, TV ads, film soundtracks—or even entire new songs—could be made and sold from these orphaned riffs.
“Something had to be done. I would pick up these musical $100 bills, these bits of song, and for safekeeping stitch them into a composition that I would copyright as mine.
“I would call it Purple Hotel Sympathy for the Stairway to Run.“
This is not over yet. Not by a long shot.