On Friday, September 28th, the Court of Appeals for the Ninth Circuit issued an opinion in Skidmore v. Led Zeppelin, which vacated-in-part a judgment out of the Central District of California that Led Zeppelin’s hit classic rock song “Stairway to Heaven” was not substantially similar to “Taurus,” a song written by the late songwriter Randy Wolfe, a member of the band Spirit. The case was remanded back to the district court after the appellate court found that certain instructions given by the district court to the jury were erroneous and prejudicial.
The appeal to the Ninth Circuit was filed in March 2017 by Michael Skidmore, the trustee for the Randy Craig Wolfe Trust, in part to challenge the district court’s jury instructions and the court’s alleged failure to instruct the jury that the selection and arrangement of musical elements, which may be unprotectable individually, can be protectable under U.S. copyright law. The Ninth Circuit’s opinion noted that the appellate court was concerned with the extrinsic test for determining substantial similarity between the works, adding that such a test could be difficult to administer.
In discussing how the extrinsic test for substantially similarity can rely on the combination of unprotectable musical elements, the Ninth Circuit cited to its 2000 decision in Three Boys Music Corporation v. Michael Bolton to note that it has previously upheld jury findings of substantial similarity based on the combination of five elements which are otherwise unprotectable by themselves. The court’s failure to instruct the jury on the protectability of combinations of otherwise unprotectable elements was especially problematic in the Skidmore case because an expert witness for the plaintiff testified that a combination of five elements, some of which were in the public domain, were the basis for the substantial similarity between the Led Zeppelin and Spirit songs. The Ninth Circuit found that the failure to provide these instructions to the jury was prejudicial because the substance of the applicable law wasn’t fairly and correctly covered, thus necessitating reversal.
The Ninth Circuit also determined that the district court erred in its formulation of the jury instructions regarding originality in two aspects. First, one of the jury instructions included language that common musical elements such as descending chromatic scales, arpeggios or short sequences of three notes aren’t protectable by copyright. “This error was not harmless as it undercut testimony by Skidmore’s expert that Led Zeppelin copied a chromatic scale that had been used in an original manner,” the Ninth Circuit’s opinion reads. Secondly, a different jury instruction omitted parts of the test for originality and added misleading language. The district court had omitted an instruction requested by Skidmore which would have acknowledged the fact that the original part of a work doesn’t need to be new or novel so long as it isn’t copied. Not only did the district court omit that part of the instruction but it also included language regarding elements of prior works or the public domain not being copyrightable. “While this statement is not literally incorrect, it misleadingly suggests that public domain elements such as basic musical structures are not copyrightable even when they are arranged or modified in a creative, original way,” the Ninth Circuit decided.
Appellant Skidmore also argued that the district court erred by not including a jury instruction on the inverse ratio rule, which requires a lower standard of proof for establishing substantial similarity when a high degree of access by the defendants is shown. While that instruction may have been helpful in proving that Led Zeppelin copied the song, the jury’s deliberations ended after deciding that “Taurus” and “Stairway to Heaven” weren’t substantially similar and thus the jury didn’t get to the issue of copying. “Because we are remanding for a new trial, however, we note that in a case like this one where copying is in question and there is substantial evidence of access, an inverse ratio rule jury instruction may be appropriate,” the Ninth Circuit added.
Elsewhere in the appeal, the Ninth Circuit didn’t side with Skidmore regarding the scope of the deposit copy of “Taurus,” the sheet music for the song deposited with the Copyright Office when registering the copyright; Skidmore had argued that the sound recording was included in the scope of the deposit copy, but the Ninth Circuit held otherwise. The Ninth Circuit did, however, determine that the district court abused its discretion in preventing the jury from hearing a sound recording of “Taurus” in order to assess whether Led Zeppelin band members Jimmy Page and Robert Plant had access to the recording. Although the lower court abused its discretion in this manner, the jury found that both Page and Plant did have access, so “any error in precluding the recordings was harmless,” the Ninth Circuit found.
J. Michael Keyes, intellectual property attorney and partner at Dorsey & Whitney, offered the following comments regarding the Ninth Circuit’s decision in this appeal:
“One of the key issues in the case was whether the descending baseline-a short chromatic series of notes-was sufficiently original and thus protected by copyright. The trial court instructed the jury that ‘common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes’ are not protected by copyright. The appellate court found this key jury instruction erroneous and, along with other errors, required a retrial.
What are the implications here? First, very little originality is necessary for music copyright protection in the Ninth Circuit. Common musical elements—the building blocks of any composition—could be considered sufficiently original so long as they are combined with other elements. Second, as a result, the decision could readily lead to more lawsuits and claims over the barest of musical similarities between two pieces. I’m not sure that’s good for musicians or the music industry. Third, on a broader level, the decision arguably overlooks the rich history of music where certain compositional elements are used and recycled and reused again to create new works. That’s what makes our music traditions and heritage so vibrant. I fear that copyright lawsuits over trivial similarities could squelch musical creativity.”