Supreme Court declines to hear Stairway to Heaven copyright infringement appeal. SKIDMORE v. LED ZEPPELIN

To win a claim of copyright infringement a plaintiff must show they own a valid copyright, and that a defendant actually copied the work. Direct copying is proven by showing that an exact reproduction of the copyrighted work was made. Absent evidence of direct copying, proof of infringement involves proving that the defendant had access to the plaintiff’s work and that the two works are substantially similar. Under the doctrine of substantial similarity, a work can be found to infringe copyright even if the wording of text has been changed or visual or audible elements are altered.

The substantially similar test is intended to protect the main purpose of copyright law, ie the advancement of science and the useful arts. If a new work is substantially similar to a prior work, then copyright infringement may have occurred. Proof of substantial similarity is satisfied by a two part test of extrinsic similarity and intrinsic similarity. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it alleges have been copied. Unprotectable elements such as idea, concepts and elements in the public domain are filtered out of the extrinsic test. The intrinsic test is an examination of an ordinary person’s subjective impression of the similarities between the two works, and is the exclusive province of the jury.

Further complicating matters is that music can be copyrighted as both sheet music and a sound recording. Just because a song exists as a sound recording does not mean that the sound recording can be used in a substantial similarity test. The date on which a song was created can change what evidence can be introduced.

MICHAEL SKIDMORE v. LED ZEPPELIN, 16-56057 (9th Cir. 2016) is a case where only the sheet music of a copyrighted work was allowed at trial. 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 classic song “Stairway to Heaven,” which was written by Jimmy Page and Robert Plant.

The plaintiff in this case owns the intellectual property assets of Randy Wolfe. Mr. Wolfe was a member of the band Spirit. Spirit and Defendants played at some concerts together in the late 1960s and likely heard each other perform their music. One of the songs that Spirit wrote and performed was titled “Taurus.” The copyright for 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 suit alleging that “Stairway to Heaven” infringed the copyright in “Taurus.”

The trial 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 plaintiff appealed the trial court’s verdict the Court of Appeals for the Ninth Circuit.

The Ninth Circuit, sitting en banc, held that the 1909 Copyright Act, which does not protect sound recordings, rather than the 1976 Copyright Act, controlled the analysis in this case because the copyright at issue was for the unpublished musical composition of Taurus, which was registered in 1967. The scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of Taurus consisted of only one page of music. Accordingly, it was not error for the trial court to decline plaintiff’s request to play sound recordings of the Taurus performance that contained further embellishments or to admit the recordings on the issue of substantial similarity.

Not satisfied with this ruling the Plaintiff petitioned the United States Supreme Court for writ of certiorari. The Supreme Court denied the petition October 5th 2020. This means that only the sheet music for songs copyrighted before 1976 can be used to determine substantial similarity, at least in the Ninth Circuit.

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