How much of a song can you copy before it is copyright infringement? SKIDMORE v. ZEPPELIN

A copyright is a set of exclusive rights granted to the creator of a new expressive work. Many different types of expressive works are protected by copyright including, paintings, movies, maps, music and computer software. United States copyright law grants a creator a copyright to their work when they fix the work in a tangible medium. This means that a musician is granted a copyright on their song when they write the song down or record the song in some way. A copyright can be registered with the United States Copyright Office to straighten the rights associated with the copyright, however copyright registration is not necessary for a copyright to be granted to a creator.

A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owners attempts to exercise one of these exclusive rights, that can be considered copyright infringement. A copyright owner can stop copyright infringement by filing a lawsuit in federal court which requests an injunction. The copyright owner can also request the court grant them monetary damages for infringement which has occurred.

It is important to note that the powerful rights associated with a copyright, are restricted to the work itself. A copyright does not extend to the facts and idea within a work, merely the expression of those facts and ideas. For example, a photographer that creates a picture of a tree has a copyright on their photograph, but other photographers are still free to to take and sell photographs of the same tree. Reproducing a copyrighted work would be copyright infringement, but independently creating an identical work would not be copyright infringement. The same principle holds true in music. There are a finite number of ways to create pleasing music, so there is bound to be some common series of notes that recur in songs created by different artists. As long as the musicians independently created their music, copyright infringement has not occurred. The problem then becomes, what evidence can a court use to determine when copyright infringement occurred or two songs just sound similar?

A case which deals with this issue is MICHAEL SKIDMORE v. LED ZEPPELIN, 16-56057 (9th Cir. 2016). The defendants in this case are a world renowned music group. In late 1971, the defendant released its fourth album, an untitled album known as “Led Zeppelin IV.” One of the tracks on the album is the timeless classic “Stairway to Heaven,” which was written by Jimmy Page and Robert Plant.

The plaintiff in this case is a trustee for trust which owns the intellectual property assets of Randy Wolfe. Mr. Wolfe was a member of a band named Spirit which had some interaction with the defendants in the late 1960s. The two bands played at some concerts together and likely heard each other perform their music. One of the songs that Spirit wrote and performed was titled “Taurus.” The copyright on sheet music for “Taurus” was registered in December 1967. Some music fans would say that “Stairway to Heaven” and “Taurus” share substantially similar musical elements. In 2015 the plaintiff filed this suit on behalf of the Trust alleging that “Stairway to Heaven” infringed the copyright in “Taurus.”

At trial the court would only allow the copyrighted sheet music to be played, because that is what was deposited with the copyright office. The plaintiff was not allowed to play sound recordings of “Taurus” for the jury. The jury found that Skidmore owned the copyright to “Taurus,” that Defendants had access to “Taurus,” but that the two songs were not substantially similar under the extrinsic test. The extrinsic test is one of two tests used to determine if an allegedly infringing work is substantially similar to a copyrighted work. This test objectively compares the protected areas of a work. The plaintiff appealed the trial court’s verdict to a three judge panel of the Court of Appeals for the Ninth Circuit.

The Ninth Circuit held that the trial court did not err in holding that the sheet music copy of “Taurus,” rather than a sound recording, defined the scope of the protectable copyright. However the trial court did abuse its discretion by excluding sound recordings of “Taurus” from evidence. The Ninth Circuit remanded the case for a new trial. The defendant then appealed that decision to the Ninth Circuit for a panel of all the judges of the court. Surprisingly the court granted this request.

The outcome in this case will be very important to copyright owners who believe that other people have copied their works, but do not have evidence of actual copying.

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