STAIRWAY TO HEAVEN, Iconic Original or Infringement

The introductory chord progression of “Stairway to Heaven” by Led Zeppelin is undeniably iconic, but the decision as to whether it is original and not an infringement of Randy Craig Wolfe’s earlier-released song “Taurus” (under the self-titled album “Spirit”) is still undecided.

Wolfe’s estate first sued Led Zeppelin for copyright infringement in 2014. A trial court issued judgment in Led Zeppelin’s favor in 2016, however, that did not stop Wolfe’s estate. Ongoing issues requesting a new trial in the case were recently argued on September 23, 2019 at the 9^th Circuit Court of Appeals in San Francisco before an 11-judge panel (which is quite unusual in such cases).

The determination of whether a new trial is required may rest on a subtle technicality. The critical issue appears to be whether copyright infringement under the 1909 Copyright Act must be determined based solely on the written compositions filed with the U.S. Copyright Office or based on sound recordings (not registrable at that time).

Should the 9^th Circuit determine that a new trial is warranted based upon looking at evidence outside what was filed in the U.S. Copyright Office, litigators may need to change their approach to some copyright infringement actions. More critically, whatever the outcome, music creators should always file both sound recordings and written compositions with the U.S. Copyright Office!

By way of background, Led Zeppelin and Spirit performed in 5 of the same music festivals during Led Zeppelin’s first U.S. tour in 1968. Jimmy Page, who takes credit for the music to “Stairway to Heaven,” owned the “Spirit” album, which included the song “Taurus” written by Spirit member Randy Craig Wolfe.  Page testified at the original trial that he could not remember whether he heard “Taurus” or not. “Taurus” was released in 1968; Stairway to Heaven was released in 1971. “Taurus” is 2 minutes, 38 seconds. “Stairway to Heaven” is a lengthy 8 minutes.

Of note,

• Page cannot read music.
• The deposited composition filed 01-11-1996 by Wolfe as Randy California with the U.S. Copyright Office, #0000725888, was transcribed sheet music. Under the copyright law at the time, sound recordings were not capable of being deposited with the U.S. Copyright Office and were required to be reduced to sheet music.
• June 23, 2016 – a jury found no copyright infringement based upon a comparison of the written musical compositions.
• September 28, 2018 – a 3-judge 9^th Circuit panel found that a new trial was warranted due to erroneous jury instructions, including an instruction that short musical sequences could never be copyrighted.
• September 23, 2019 – the issue of whether a new trial is warranted is heard by an 11-judge 9^th Circuit panel. As of this writing, a decision has not been rendered.
• “Taurus” 1968 album recording: https://youtu.be/S1vJKO4a_Cw
• “Stairway to Heaven” remastered: https://youtu.be/iXQUu5Dti4g

The chord progression at issue is a fairly simple chromatic one. One issue at trial was whether such a progression should even be granted protection. In the event no new trial is granted, this issue will have to wait until the next copyright infringement action. In the meantime, make sure to file both written compositions and sound recordings. In 1971, the U.S. Copyright Office was amended to provide protection for sound recordings published after February 15, 1972.

This article would not have been possible without the help of Yesenia Cabrera-Gonzalez, File Clerk with HOLZER PATEL DRENNAN whose able research and editing assistance contributed greatly.

Nothing in this Article should be considered legal advice. Should you have any concerns about specific legal issues please consult with a qualified legal practitioner. Judith Keene can be reached at (720) 684-5375 or jkeene@hpdlaw.com. 

Reasons to Register Your Copyright!

On 3/4/19, the hashtag#SupremeCourt resolved a circuit dispute on when a hashtag#copyright infringement suit can be instituted. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, the court held that the copyright statute, 17 USC 411(a), controls when a copyright claimant can file an infringement suit. The applicable portion of the statute reads: "[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." The underlined portion is where appellate circuits have disagreed. While most circuit courts have required registration of a copyright prior to filing a complaint for copyright infringement, some courts determined that filing an application was sufficient.

The Supreme Court's opinion resolves the appellate court differences in holding that copyright registration "has been made" when registration is issued - not when an application for copyright registration is filed. An infringement action may also be initiated if the U.S. Copyright office issues a denial of registration. The applicable portion of 17 USC 411, states in part: "In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights."

What does this mean for you?

Copyright exists upon creation. Regardless, if another person creates a work that is substantially similar to your work and you have not registered your work, your rights to damages are severely limited.

1. Without registration, you cannot file an action for infringement.
2. Without registration either 3 months after first publication or 1 month after learning of infringement, you cannot request statutory damages or attorney's fees for an unpublished work (before the effective date of registration) or for infringement commenced after first publication adn before the effective date of registration.