In Zeppelin case, Circuit is leery of stairway to precedent

An 11-judge panel for the 9th U.S. Circuit Court of Appeals seemed chiefly concerned Monday with how a ruling in the highly contentious "Stairway to Heaven" case might shift the scales of music litigation.

En banc requests are rarely granted, particularly in copyright cases, but the band's bid to overturn the 9th Circuit's prior reversal of their trial court win proved the rare exception.

In September, the three-judge panel reversed a federal jury's 2016 decision finding no substantial similarity between Led Zeppelin's legendary 1971 hit and "Taurus," a 1968 song by the band Spirit. The panel found U.S. District Judge Gary Klausner failed to provide adequate jury instructions and remanded the case for retrial.

Sticking close to the argument that won his client a second chance at jury trial, plaintiff attorney Francis A. Malofiy told the en banc panel Monday that Klausner denied valid requests to analyze similarities between the works more thoroughly.

Malofiy said the jury was instructed to determine only whether there was an extrinsic similarity between the deposit copies of the songs at issue, when they should have been able to find similarity based on "the compositions embodied in the sound recordings."

If Led Zeppelin's Jimmy Page had stolen the iconic "Stairway to Heaven" intro as alleged, Malofiy reasoned, he would have lifted it from the sound recording found on one of the albums Page was proven to own. Not the deposit copy.

"Jimmy Page never went to Washington D.C., and went to the Copyright Office. Never pulled out a dusty leaf sheet of Taurus, and never copied from the Taurus deposit copy," Malofiy said. "So why are we looking at this artificial analysis that never happened in the real world? It's wrong. It's artificial. It's imaginary."

As a work created prior to the Copyright Act of 1976, Malofiy argued he was limited at trial to making arguments based only off the sheet music of "Taurus." Under pressing from Circuit Judge Andrew D. Hurwitz, Malofiy admitted he stood little chance of victory at trial when limited to the deposit copy.

But the act allowed pre-1976 song creators to update their submissions to the copyright office, and songwriters were notified they could broaden protections to cover sound recordings by doing so. "Taurus" writer and Spirit frontman Randy California, who died in 1997, never took the office up on the offer, nor did the song's producer Lou Adler.

This seemed a major sticking point for the en banc panel with multiple panelists questioning whether there was any point in remanding the case should sound recordings once again be barred. It was also a major point of contention for Led Zeppelin attorney Peter J. Anderson.

Anderson said there was no effort made to amend the deposit copy in the decades following the track's release, nor was it raised as an issue by the plaintiffs at the outset of litigation. He actually argued in favor of a jury instruction to determine similarities between the selection and arrangement of the two works, he said, while the plaintiffs fought against it.

The appeals court cited the lack of such a jury instruction to support its reversal in the case.

A representative for the federal government was also on hand, speaking in favor of the band's challenge and warning a remand could wreak havoc on courts as well as the copyright office. Assistant U.S. Attorney Daniel Tenney argued against a further shift in precedent, a notion several panelists seemed to find agreeable.

Given that the song was made pre-1976, and that its owners had an opportunity to amend the deposit copy yet neglected to do so, Circuit Judge Paul Watford asked whether the rare and specific circumstances of the claim were the reason for the dearth of relevant case law.

"We've spoken the better part of an hour, and yet this seems irrelevant for all but a tiny amount of cases out there," Watford said.

The case itself is the result of a shift in precedent created by a U.S. Supreme Court ruling in the "Raging Bull" case. The court found the doctrine of laches could not be invoked to block a statute of limitations claim, which had been cited by Malofiy as the reason why no prior litigation had been brought against Led Zeppelin.