All that glitters is gold for Led Zeppelin legend

Last Thursday in a Los Angeles federal courtroom, a unanimous eight-person jury exonerated British rockers Jimmy Page and Robert Plant - two members of the storied Led Zeppelin rock band - from claims of copyright infringement over the iconic 1970s rock anthem "Stairway to Heaven." The plaintiff was a man by the name of Michael Skidmore, but it was not his song that was allegedly purloined by Page and Plant. Instead, Skidmore was the trustee of the estate of Randy Wolfe, the former front man of a relatively-obscure rock band by the name of "Spirit." Wolfe allegedly wrote the song "Taurus" which Spirit performed in the late 1960s. Wolfe's estate claimed the opening guitar riff of "Stairway" copied "Taurus," a claim that was vehemently denied by Page and Plant.

Over the course of six days, the jury heard testimony from Page, Plant, and their former Zep bandmate and bassist, John Paul Jones. The jury also heard from musicologists as to the various similarities - or dissimilarities, depending on one's perspective - between the two songs. After deliberations spilled into the second day, the jury ultimately sided with Zeppelin and found the works were not substantially similar, but not before asking the judge for one last opportunity to listen to the two works again.

The jury's verdict may have several noteworthy implications for current music copyright cases (such as those pending against Justin Bieber and Ed Sheeran) and future ones, too. Although teasing out exactly what swayed the jury is a bit like reading tea leaves, here are some observations:

One, a music copyright plaintiff should think carefully about whether the "amount" of alleged infringement is significant enough to pursue (especially through a full-blown jury trial). The amount of alleged similarity in this case was essentially a five-note "baseline," and the jury's verdict may signal that such a relatively small degree of alleged similarity may not be worth the paper it's pleaded on. In fact, on the special verdict form, the jury answered "no" to the question of whether the "original elements of the musical composition Taurus are extrinsically similar to Stairway to Heaven?" Maybe the jury thought that this five-note riff was inconsequential relative to the greater whole of "Stairway." Or, perhaps they believed this riff was not original to Taurus. Which leads me to my next observation.

Two, a music copyright plaintiff should consider whether the alleged "similarity" is due to copying or, rather, whether the similarity may be due to common elements that exist in the world of music. Just as an author cannot claim copyright protection in "stock" plot elements (i.e., "it was a cold, dark stormy night"), a musician cannot protect "stock" music elements either (i.e., a "baseline" that has been used in scores of musical compositions). There certainly was loads of evidence that the baseline at issue appeared in many other compositions and songs, including "My Funny Valentine" from the 1930s and "Chim-Chim Cher-ee" from the Mary Poppins musical of the mid-1960s.

In fact, one can even hear the opening riff from "Stairway" in the work of Giovanni Battista Granata, an Italian guitar player and composer who lived back in the 1600s. Don't believe me? Check out this recording of Granata's composition "Sonata di Chittarra, e Violino, con il suo Basso Continuo," https://www.youtube.com/watch?v=zKpbJ5Kjy2I. Thirty-two seconds into this recording, you will hear something that sounds an awful lot like the opening guitar riff in "Stairway." My point isn't that Page and Plant copied Granata (although if Granata's estate catches wind of this similarity, who knows what may happen). Rather, the point is simply that no one should have copyright dominion over short musical ideas, particularly those ideas that have been used dating back centuries.

Three, while it may seem obvious, careful consideration should be given to what the protected work is and what it will be compared to before a jury. The internet has been abuzz about the alleged guitar riff similarities between the sound recording of "Taurus" and the sound recording of "Stairway." But the jury did not hear that comparison. Instead they heard a piano version of "Taurus" and the sound recording of "Stairway." Why? Because the sheet music version of "Taurus" is what was registered with the U.S. Copyright Office. It may have been too much of a stretch for the jury to appreciate any similarities between a rather sedate composition plunked out on a keyboard and the soaring, electric sound recording of one of the rock genre's greatest hits of all time.

Four, finally, a significant delay in pursuing one's rights may hit a sour note with a jury. Yes, I know the U.S. Supreme Court recently told us that the defense of laches ("unreasonable delay") does not bar a claim for copyright infringement. And yes I know that plaintiff's counsel made a passing reference to the fact that the law recently "changed," which allowed this case to be pursued 40 years after the alleged infringement. But those legal niceties may be irrelevant to a jury, subconsciously or otherwise. The plaintiff's work was written back in the late 1960s. "Stairway" was written back in the early 1970s. The multiple-decade delay in pursuing this case - especially given that the person who wrote "Taurus" has already ascended his own stairway - may have rubbed the jury the wrong way. It may have seen the plaintiff's estate as simply trying to cash in on "all that glitters is gold."

Plaintiff's trial counsel said after the verdict that there are multiple grounds for appeal. So, as we wind on down the road, his statement makes me wonder if we will see this case before the 9th Circuit. Ooh, it really makes me wonder.