The rock group Led Zeppelin has just recently prevailed in a long fought copyright infringement lawsuit brought against them by the estate of Randy California—a member of the band Spirit. The lawsuit dealt with the opening chords of what is likely Led Zeppelin’s most famous song--"Stairway to Heaven."
Led Zeppelin’s song, written in 1971, allegedly was quite similar to “Taurus;” a song written by Spirit three years earlier. Specifically, the opening to “Stairway to Heaven” bore some notable similarities to parts of “Taurus.”
Led Zeppelin is no stranger to accusations of copying. They have settled copyright infringement lawsuits over their songs “Dazed and Confused,” “Whole Lotta Love,” and more. However, this lawsuit may have been a bit more out of left field for the aging rock stars because the song is old. Where a copyright lawsuit is delayed long enough, the courts would often allow a defendant to use the delay in litigation as a defense. The delay needed to be sufficient to prejudice the defendant by making it harder to produce evidence in their defense. What’s more the timing on the delay didn’t start ticking until a would be plaintiff knew or should have known they could bring a claim.
However, a few years back, a Supreme Court case essentially put the kabosh on all laches defenses in copyright infringement cases. The Court felt that the three-year statute of limitations for claims of copyright infringement were a sufficient cut off point to allow any defendant to reasonably defend a lawsuit. This opened the door to a number of new lawsuits.
This was true for Spirit, as it allowed them to sue over Led Zeppelin’s recent remastered version of “Stairway to Heaven,” even though the original release of the song was far outside the normal statute of limitations.
With lawsuit cleared to go ahead, and the validity of Spirit’s copyright on the song “Taurus” not in question, the case came down to something with many copyright infringement cases turn on—did Led Zeppelin copy Spirit’s song?
Copying in Copyright Lawsuits
Copyright protects provides a bundle of rights to the copyright holder. Where somebody copies from a protected work without authorization, like Led Zeppelin was alleged to do here, that can represent copyright infringement. However, not all similar works rise to the level of copyright infringement. In a copyright infringement lawsuit, copying is held to a specific legal standard to determine whether the evidence before the court is sufficient to show a violation of the copyright holder’s rights.
Copying is determined based on a sliding scaled of access and similarity. The idea behind this is that to show copying the accused must have known of the work they are said to have copied from and the work they produced must actually be similar to the work they allegedly copied from. The more evidence of access, the less evidence of similarity is required for a finding of copying and vice versa. Where there is particularly substantial evidence of similarity, the courts will presume access. This is known as a finding of striking similarity. In determining whether this exists, the court looks to the uniqueness of the similar sections, mistakes or errors which appear in both the original and the alleged copy, and more. It should be noted that, while sufficient similarity can alleviate the need for evidence of access, a certain level of similarity must always be proven regardless of the amount of evidence showing access to the work.
The jury in this case had no problem making a finding that Led Zeppelin were familiar with and had access to “Taurus.” Two different members of Led Zeppelin both had copies of the Spirit album which featured “Taurus” when they wrote “Stairway to Heaven.” Even more damning, Spirit had previously opened a show for Led Zeppelin where they played “Taurus.” The members of Led Zeppelin had even hung out with the members of Spirit on numerous occasions.
The second issue of similarity, however, was much more complicated for the jury to determine. This is fairly common, especially in cases dealing with music. This is because musical similarity has two aspects to it, being similar to the ear and having similar structure. Here, the songs shared many arpeggios and could certainly be thought to sound alike to a certain extent in some places. However, for every similarity there were notable differences. So the question became, are the songs similar enough to decide that one copied another?
The lawyers for both Spirit and Led Zeppelin produced, as is common in cases such as these, expert musicologists to analyze the two songs and present the ways in which they are similar and different. As you might imagine, the musicologist for Spirit highlighted the similar arpeggios used as well as the places where the note combinations, pitch, and tempo where alike. Spirit’s musicologist even played the songs one after another on a guitar, explaining the similarities. Led Zeppelin’s musicologist focused on how few sections were actually identical. They argued that the only truly similar section drew from a chord sequence dating back to songs over 300 years old.
What the jury never did hear, however, is the original recording of the song “Taurus.” The musical composition that was at issue here for copyright infringement—not the initial sound recording of “Taurus.”
Ultimately, the jury sided with Led Zeppelin’s musicologist and ruled that there was insufficient evidence for a finding of similarity between the two songs. Not only did they rule against similarity, they did so unanimously. While the songs shared some similar aspects, they were not similar enough in the minds of the jury for a finding of copyright infringement.
The case is currently on appeal, so it’s far from over for Spirit and Led Zeppelin. However, the case is a good example of just how complicated a finding of copying can be in a copyright infringement case. The truth is, the determination is such a complicated one that it often can simply come down to the jury’s opinions on the issue. A case you win one day might be unanimous against you the day after. We’ll have to see where the case goes on appeal before Led Zeppelin can finally “ramble on.”
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law