‘Stairway to Heaven’ plaintiffs seek encore performance

A 9th U.S. Circuit Court of Appeals panel didn't have "a whole lotta love" for much of Michael Skidmore's argument Monday in his bid to reverse a trial loss against the rock band Led Zeppelin, but they seemed intrigued by his assertion that the lower court fumbled the jury instructions.

A Los Angeles County jury ruled in June 2016 that while Led Zeppelin members Jimmy Page and Robert Plant had access to "Taurus," a song performed by the band Spirit, they found that track was not extrinsically similar to Led Zeppelin's "Stairway to Heaven."

Before he'd even stepped off the courthouse steps, plaintiff's attorney Francis A. Malofiy -- who racked up over 100 sustained objections against him over the course of the heated trial -- was criticizing the decision.

He took particular issue with U.S. District Judge R. Gary Klausner's refusal to play the sound recording for "Taurus" before the jury, limiting the plaintiff to the musical composition found in the track's copyrighted deposit copy. Skidmore v. Led Zeppelin, 15-CV03462 (C.D. Cal., filed May 31 2014).

Two years later, Malofiy again squared off against Zeppelin counsel Peter J. Anderson of Santa Monica to argue that excluding the sound recording unfairly limited the scope of the plaintiff's case.

Much of his argument in favor of the reversing the lower court dealt with the Copyright Act of 1909, which Malofiy said provided state common law copyright protections to the plaintiff because it was created prior to implementation of the Copyright Act of 1976. As a result, he said, federal copyright laws shouldn't limit the plaintiff to the deposit copy.

Anderson said he read the scope of the 1909 Act "slightly differently." Not only does the act not support supplanting federal law for state common law protections for pre-1978 recordings, he said, the 9th Circuit had ruled against such a reading in prior cases. Batjac Productions Inc. v. Goodtimes Home Video, 160 F. 3d 1223 (9th Cir, 1998).

Judge Sandra Segal Ikuta twice asked Malofiy for evidence from the act or prior case law that would support his reading of the 1909 Act's scope, and while Malofiy said he'd address those points in rebuttal, the panel didn't get an immediate answer.

But the point of contention that seemed to most interest the panel was the lower court's omission of a jury instruction that both sides say they had asked for at trial.

Though it came up only briefly during Malofiy's argument, the plaintiff's trial brief raised issues with the exclusion of an instruction that would have made clear to the jury that combinations and arrangements of unprotectable musical elements are protectable.

Ikuta said that testimony from expert witnesses at trial had noted that similarities between the two songs were "unique in combination." So why, Ikuta asked, wasn't that sufficient reasoning to instruct the jury about how unprotectable musical elements could enjoy protection once combined?

Anderson pointed out that it was the defendants who had initially fought for the jury instruction, and while he acknowledged the court's omission, he said the plaintiff had fought against including the question as it was phrased. Anderson said the plaintiffs were "better off" without the instruction, as it would have raised the burden of proof Skidmore would have had to show.

William Hochberg, a music attorney at Greenberg, Glusker, Fields, Claman & Machtinger LLP who is not involved in the case, said that while the panel seemed caught up with the potential jury instruction issue, it's likely they were giving Skidmore's appeal a sympathetic reading. Hochberg ultimately found the plaintiff's argument "unappealing."

"I think they gave Anderson a lot more questioning than they gave [Malofiy], which is a good sign" for Led Zeppelin, Hochberg said.

Hochberg said the panel's ruling would be interesting to watch in relation to the other major music infringement case before the 9th Circuit over a jury's ruling in a case between Pharrell Williams and the estate of Marvin Gaye.

In that case, Williams and fellow musician Robin Thicke were sued over alleged similarities between the duo's song "Blurred Lines" and Gaye's "Got To Give It Up."

Unlike Skidmore's case, however, U.S. District Judge John Kronstadt allowed expert witnesses to speak to alleged similarities between the songs not found in the deposit copies at issue, a decision that has been seen as contentious among many music attorneys. Williams v. Bridgeport Music, 13-CV06004 (C.D. Cal., filed Aug. 15, 2013).

"A ruling by the 9th Circuit in favor of Page and Plant would help Robin Thicke and Pharrell Williams in the 'Blurred Lines' case," Hochberg said. "Maybe that wrong-headed jury verdict will be overturned if the correctly decided Led Zeppelin verdict is upheld at the 9th Circuit."

Neville Johnson, an entertainment attorney at Johnson & Johnson LLP not involved in the case, said Skidmore's struggle showcases the uphill battle plaintiffs in music infringement cases face in the appeals court.

"I would say from a practical point of view, the evidence is quite strong that Zeppelin did copy," said Johnson, who formerly served as counsel to the late Spirit lead singer Randy California. "It goes to show you the difficulty of prevailing on any copyright claim in the 9th Circuit."

Ikuta, Circuit Judge Richard Paez and U.S. District Judge Eric N. Vitaliano comprised the panel.