KORN And TOOL Ask To Weigh In On LED ZEPPELIN's 'Stairway To Heaven' Copyright Case

August 4, 2019

According to Digital Music News, KORN and TOOL are among the artists who have submitted a new filing to aid LED ZEPPELIN in the "Stairway To Heaven" copyright lawsuit.

Last September, a federal appeals court decided unanimously to overturn a jury's decision that LED ZEPPELIN's 1971 classic was not a rip-off of SPIRIT's song.

Michael Skidmore, the trustee of "Taurus" songwriter Randy "California" Wolfe's estate, had brought the claims more than four decades after "Stairway To Heaven" appeared on LED ZEPPELIN's untitled album, better known as "Led Zeppelin IV".

In an amicus brief filed on July 30 at the Ninth Circuit Court of Appeals, more than a hundred artists explained they "have a significant interest" in the case.

The briefing reads: "[We], whose music entertains and enriches the lives of countless people worldwide, will therefore undoubtedly be affected by…the outcome of this critically important case."

"There was no evidence presented at the LED ZEPPELIN trial that the otherwise unprotected elements that appeared in 'Taurus' were presented in such an original pattern or compilation as to garner copyright protection. Instead, the 'evidence' of the purported 'selection and arrangement' in 'Taurus' that also appeared in 'Stairway To Heaven' merely consisted of random similarities of commonplace elements, such as the existence of a descending chromatic scale and two-pitch sequences in different melodies that were scattered throughout the beginning of the songs. After filtering out the generic elements or musical commonplaces identified in 'Taurus' under the extrinsic test, what remains are two completely different songs. More specifically, both songs start with chords that, according to both sides' experts, are 'commonplace.' In fact, both songs include an 'arpeggio,' which means 'breaking' chords so their constituent pitches are heard separately rather than simultaneously, which, again, both sides' experts agree is 'commonplace.' Both experts also agree that these 'broken' chords' pitches are played in a different order in 'Taurus' than in 'Stairway To Heaven', which makes the two songs' melodies different. In fact, the two songs' melodies' lowest pitches are a descending chromatic scale, which is nothing more than the white and black keys of a piano, played in order, right to left. This is not original."

In June 2016, a Los Angeles jury deliberated for about five hours before deciding unanimously in favor of LED ZEPPELIN.

The verdict in the LED ZEPPELIN case came down within 15 minutes of the jury's request to re-listen to both SPIRIT's "Taurus" and "Stairway To Heaven". They wanted to hear a section of each song twice, alternating from one to the other. They decided that what they heard wasn't substantially similar enough to call it copyright infringement.

Skidmore appealed, and in September, a three-judge panel of the U.S. 9th Circuit Court of Appeals decided a new trial was needed because the judge who presided over a 2016 trial had given erroneous and prejudicial instructions to the jury.

The court said the judge erred by telling the jury that common musical elements, such as "descending chromatic scales, arpeggios or short sequences of three notes," were not protected by copyright. The court also said the jury should have been permitted to hear the album recording of "Taurus".

In the July 30 briefing, the artists argued against this, writing: "In addition to the prejudicial nature of the mandate to play the sound recording for the jury on the issue of access, there is no probative value whatsoever in such an exercise. 'Taurus' was recorded and released in November of 1967. 'Stairway To Heaven' was written in approximately November of 1970. Because the members of LED ZEPPELIN denied having 'access' to 'Taurus' when they wrote 'Stairway To Heaven', access was definitely an issue in the case (to establish 'copying'). However, the only 'access' at issue in this case is whether the members of LED ZEPPELIN had access to 'Taurus' between November of 1967, when it was released, and November of 1970, when they wrote 'Stairway To Heaven'.

"Clearly, it is irrelevant whether or not LED ZEPPELIN had access to 'Taurus' in the almost five decades after 1970, including at the time of trial. It is inconceivable that the defendants — even if they did not hear the sound recording for the prior four decades — did not listen to the recording during the litigation, and prior to the time of trial. In fact, at the very least, by the time of the trial, every defendant would have heard the sound recording multiple times while conducting discovery and preparing for trial. Accordingly, the only thing that playing the sound recording to the defendant in front of the jury would demonstrate is how the defendant reacts to hearing a sound recording that he or she necessarily may have heard a thousand times prior to the trial. It certainly does not provide any evidence whatsoever that any such defendant heard the song at any time prior to the creation of the allegedly-infringing work, which is the only relevant time period for purposes of access in a copyright infringement case. Such a mandate also would not have any realistic bearing on any of the defendants' credibility regarding their testimony concerning lack of access. Notwithstanding the district court's observation that the defendants' reactions to hearing 'Taurus' were relevant, there truly is no relevance whatsoever to a defendant's reaction to hearing a song for the thousandth time, 46 years after an allegedly-infringing song is written — and any minimal relevance would certainly be outweighed by the extreme prejudice to the defendants.

"In light of the foregoing, if the panel's decision is adopted by this en banc court, artists and songwriters who are sued for copyright infringement in cases that involve songs that were written prior to 1972 will be at an extreme disadvantage, and suffer severe prejudice, because the plaintiff will be able to play the otherwise unprotected sound recording to the jury under the guise of proving (somehow) that the defendant had access to the song when he or she wrote the allegedly-infringing song."

Immediately following the June 2016 verdict, LED ZEPPELIN's Jimmy Page and Robert Plant released a statement saying that they were glad to see the issue resolved.

"We are grateful for the jury's conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of 'Stairway To Heaven' and confirming what we have known for 45 years," they said. "We appreciate our fans' support, and look forward to putting this legal matter behind us."

Plaintiff's attorney Francis Malofiy later claimed he lost his case on a technicality, insisting that it was unfair the jury was unable to listen to the sound recording of "Taurus" and instead was limited to hearing an expert performance of the registered sheet music.

Malofiy received over a hundred sustained objections and "multiple admonishments" during the ZEPPELIN trial, with the band's publishing company Warner/Chappell Music filing documents asking the judge to order the plaintiffs to pay over $613,000 in costs for defending against the lawsuit.

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