Jury Hands Zeppelin a Heavenly Victory

Jun 24, 2016

Stairway to Heaven album cover

In Robert Plant’s world, all that glitters is not gold, and all that sounds like another artist’s work is not stolen from that artist. Fortunately for Plant and his Led Zeppelin bandmates, a Los Angeles jury agreed. That jury found on Thursday that the estate of Randy Craig Wolfe, the lead guitar player for a Zeppelin contemporary, Spirit, had not proved that the iconic opening guitar riff to “Stairway to Heaven” was lifted from Spirit’s “Taurus.”

The Lawsuit

The suit alleged that Led Zeppelin copied parts of Stairway from Spirit’s single, “Taurus.” Wolfe, who wrote Taurus, stated prior to his death that “it was a rip-off” of his music. His estate now seeks damages and writing credit for Wolfe.

After listening to Taurus,  it is safe to say that even casual fans of Zeppelin’s work can likely identify the chords that Wolfe believed Zeppelin to have “ripped off.” There is also little question that Page and Plant had access to Spirit’s work. Between 1968 and 1969, the two bands played five shows together. Spirit played “Taurus” at each of those shows.

The Jury’s Findings

Indeed, the jury expressly found that members of Led Zeppelin had heard “Taurus.” Nonetheless, a half-an-hour after listening to both songs one last time, the jurors issued their verdict that the songs lacked substantial similarity in their extrinsic elements.

Wolfe’s estate has already vowed to appeal the decision, perhaps based on U.S. District Judge R. Gary Klausner’s refusal to allow the jury to hear alternative versions of Spirit playing “Taurus.” Judge Klausner ruled that the jury should not hear these recordings because Wolfe’s copyright extended only to the sheet music filed with the U.S. Copyright Office.

Vindication of Oft-Accused Artists

Thursday’s verdict comes as something of a vindication for a band that has repeatedly faced copyright infringement claims and accusations. The opening lyrics for “Whole Lotta Love” are remarkably similar to the final verse of the Muddy Waters song “You Need Love.” “The Lemon Song” contains a number of lyrics similar to Howlin’ Wolf’s “Killing Floor,” a song Zeppelin played routinely during the same 1968-1969 American tour in which it opened five shows for Spirit. Copyright infringement suits related to both of these works, as well as several others, resulted in out-of-court settlements and song-writing credit given to the plaintiff. “Stairway” is the first song over which the band has litigated infringement claims through trial.

 

[Note: This post was authored by Jason Horst.]

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Suing to the Oldies

Aug 14, 2014

I’m listening to my Classic Rock station on Pandora, and Keith Richards’ timeless guitar licks begin to blast from my laptop speakers.  I instinctively pick up my air guitar and start to wail.  Mick comes in:  “I. Can’t. Get. No. . .”  Then . . .  nothing.  I snap out of my rock star fantasy and wildly click over to Pandora to figure out what happened.  Over the picture of the Stones’ Out of Our Heads album cover, there is a message from Pandora: “This track is no longer available on Pandora.  We apologize for the inconvenience.”

Pandora

Ok, the Stones didn’t really disappear.  Not yet.  In actuality, Mick went right on singing, Keith went right on riffing, and I went right on wailing on the air guitar.  Nonetheless, the following two facts are absolutely true:  1) you don’t care about the rest of my jam session—which was complete with kicked-over “mic stands” (coat racks) and a T-shirt thrown into the “crowd” (my mortified wife and children)—and 2) fans of the Stones, Beatles, Elvis, Miles, Coltrane, and many other musicians with pre-1972 recordings could soon see these recordings removed from Pandora—and other commonly-used media—if record companies prevail in a recent suit filed against the Oakland-based company.

The Pandora Suit and SoundExchange

The suit against Pandora, which the record companies filed in New York state court, involves a challenge encountered in integrating the music industry’s royalty system:  millions of people listening to music using media that did not exist even 15 to 20 years ago, let alone in 1972.  Yet, when copyrighted songs are played on Pandora, satellite radio, or streaming webcasts, the holders of the copyrights are still entitled to royalties.  Many companies using digital recordings, including Pandora and SirusXM, use a company called SoundExchange to track usage, collect digital royalties, and distribute them to copyright holders.  Problem solved, right?  Unfortunately, there’s a catch.  SoundExchange may not track usage of material recorded or “fixed” before 1972, meaning that it would not collect or distribute royalties on such recordings.

The Problem With Pre-1972 Recordings

On February 15, 1972, Congress brought sound recordings under federal copyright law.  Prior to 1972, however, musical recordings were protected only be state copyright laws, many of which are based in common law, court-made rules that are not codified in statutes and, at least in many instances, do not require registration in order to protect recorded material.  The suit against Pandora is based on New York common law.  Works that are copyright protected by state common law are harder to track than those protected by a registered federal copyright.

The record companies in the Pandora suit, as well as in a California suit against SirusXM, contend that they have not been paid for usage of their pre-1972 recordings.  Pandora appears to tacitly acknowledge as much.  According to the complaint, Pandora told the SEC that if it were required to obtain licenses for the reproduction and public performance of pre-1972 sound recordings, the expense of compliance may be so prohibitive that Pandora would simply remove all pre-1972 recordings from its service.

We will watch the Pandora and SiriusXM cases with great interest, as the cases could end up significantly diminishing both services, as well as my living room concert series.

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