Led Zeppelin 'Stairway To Heaven' Copyright Case Will Go To A Jury... Meaning Band Will Almost Certainly Lose

from the even-though-it-shouldn't dept

Wed, Apr 13th 2016 10:38am — Mike Masnick

This isn't surprising, even if it is a bit disappointing. Led Zeppelin has long been accused of copying others songs, and there are actually a bunch of videos on YouTube detailing examples. Here's just one: Some of the examples do sound like pretty blatant copies, while others are, at best, homages or inspirations, rather than direct copies. Even so, it's difficult to get too worked up about these complaints. It should be pretty clear that even where the band copied others, it did so in a different way that often got much more attention to the work than anything the original version got. Either way, there have been a few new lawsuits brought against Led Zeppelin recently, despite it being decades since the band was actually a thing. A few years ago, we wrote about folk singer Jake Holmes suing Jimmy Page for copying parts of the Led Zeppelin song "Dazed and Confused." That case appears to have been settled out of court.

More recently, the estate of Randy Wolfe (aka Randy California), who was the guitarist for the band Spirit and wrote the song Taurus, sued the band over the song "Stairway to Heaven," whose guitar line is obviously quite similar to Taurus. You can definitely hear the similarities, though the chord progression is pretty basic (and the two songs are not identical). Of course, another video comparing the two notes that both songs are actually most similar to Bouree in E Minor by Johann Sebastian Bach -- raising questions as to whether there's any legitimate copyright at all here: Either way, federal district court judge Gary Klausner rejected a variety of claims from Zeppelin's Robert Plant and Jimmy Page and said that the case needs to go to trial in front of a jury. That's going to make things difficult for Plant and Page. As with the Blurred Lines trial last year, you see that many people freak out when they hear two songs are pretty similar and assume that something wrong must have happened. Of course, that's not how copyright law is supposed to work, but alas, that's what years of the big legacy industries brainwashing the public on copyright has resulted in.

Of course, as we've noted in the past, tons of songs have similar chord progressions that can lead to similar sounding songs. It's why there are multiple comedy routines pointing this out: There's only so much that can be done with musical chord progressions and some work really well and lead to a lot of similar sounding songs. And that's not a bad thing. Some of them, quite likely, are inspired by others. In the Stairway to Heaven case lots of people point out that Led Zeppelin and Spirit toured together early on. So there's a bit of "smoke" that leads people to scream fire (ignoring of course, that Bach came first). But again, does this really matter? Wolfe didn't sue in the decades since the two songs were released. It was only many years later, after his death, that his estate suddenly decided to make a money-grab out of it.

Either way, judge Klausner thinks the songs have a similar "feel" and thus a jury should decide, quoting previous cases:

What remains is a subjective assessment of the ‘concept and feel’ of two works . . . a task no more suitable for a judge than for a jury.

Thankfully, Klausner does reject comparisons between the performance style between the two songs, noting that that's different than the composition itself (the work that is actually covered by the copyright in question). But, again, that was also true in the Blurred Lines case and the jury more or less ignored it, because the songs sounded similar. So, again, there seems to be a good chance that Plant and Page will lose this case because a jury will think the two songs sound too similar. But sounding too similar isn't how copyright law is supposed to work.

Gov-Uscourts-Cacd-617820-159-0 (PDF)Gov-Uscourts-Cacd-617820-159-0 (Text)

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Filed Under: copyright, jimmy page, jury, led zeppelin, music, robert plant, similarities, spirit, stairway to heaven, taurus

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That One Guy (profile), 13 Apr 2016 @ 9:33am

No inspiration allowed
Clearly music should only be allowed to be written by carefully isolated song-writers, who are taught only the absolute basics regarding music and composition and who are not allowed to listen to any actual songs to avoid any potential contamination, ensuring that when two songs from different song-writers sound similar it can be assured that it was purely coincidence.

With no ability to build off of what has come before and each new song-writer having to start from scratch culture will flourish, with countless new songs created, some of which might even be bearable to listen to.
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AnonCow, 13 Apr 2016 @ 10:54am

Similar? Yes. Inspired by? Probably. But is it a copy? No.

If you don't believe me? Look at the sheet music for the two songs.

"Sounds somewhat similar to an untrained ear" is NOT the basis for copyright.
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David, 13 Apr 2016 @ 10:54am

Modern times
This music copyright thing is likely the culprit for lots of current-day popular music being melodyless monotonic speech over some rhythm track with indiscernible intention.

Seems pretty safe to me since a judge will not in general have to revert to a jury to find that there are no recognizingly similar elements of significant musical creativity in two "songs" because there are no elements of significant musical creativity at all.
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Anonymous Coward, 13 Apr 2016 @ 10:54am

"Of course, another video comparing the two notes that both songs are actually most similar to Bouree in E Minor by Johann Sebastian Bach -- raising questions as to whether there's any legitimate copyright at all here"

Bach is public domain so why would it have any effect on copyright status of the other works?
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DB (profile), 13 Apr 2016 @ 10:58am

The jury should be made up of orchestra session musicians.

Three days later they would come back with "we can't decide if they copied more from 17th century music or ripped off those 18th century music pirates".
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David, 13 Apr 2016 @ 11:01am

Re:
It doesn't. If you create something based on Bach's music, then the copyright of the result is yours entirely.

However, if you do so, then the test for similarity (which is the criterion for patents but merely a piece of evidence for copying/copyright) becomes much harder to properly interpret: are there any new copyrightable elements that have been copied, or is it just the idea of scavenging on a particular Bach piece?

The latter is insufficient for justifying a copyright claim.
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Mason Wheeler (profile), 13 Apr 2016 @ 11:12am

Re:
As amusing as this is, unfortunately it's exactly the opposite of what happens at a real trial. The Constitution specifically mandates "a jury of your peers", but the first thing that any lawyer will do during jury selection is disqualify all peers--people with actual, relevant knowledge of the topic at hand--because if you know what's actually going on, it makes it that much harder for lawyers to bamboozle you with obfuscation and fancy doubletalk.

Therefore, I would be incredibly surprised to find even that a single trained musician ended up on the jury for this case.
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Anonymous Coward, 13 Apr 2016 @ 11:24am

Stairway to Heaven was released in 1971 and was popular enough that nobody could reasonably claim to have not known about the song. Suing at this point is ridiculous.
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Anonymous Coward, 13 Apr 2016 @ 11:31am

Re: Re:
What happens in that latter case? Do you get the copyright on your own work and just can't enforce it, or does no one really have a claim on any of those disputed works?
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Anonymous Coward, 13 Apr 2016 @ 11:33am

No matter how you stack it, there are only 8 notes in the music scale along with the sharps and flats. Some notes absolutely do not go together in the wrong keys. You start with a limited set of music notes no matter how you combine them, after decades of previous artists you are going to sound like someone else.

The question is, is it a direct copy? If not then it is hard to prove it was stolen works.
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Anonymous Coward, 13 Apr 2016 @ 11:39am

Re: Re: Re:
You get the copyright on what you created, and can enforce it if someone copies your work. If it's unclear as to whether they copied your work or the work you based your work on... well, a jury decides.

Take something like The Wizard of Oz. The book is in the public domain, but the movie is not. So to decide if a new work is copying the book or the movie, they might look at things the movie changed (like the color of the slippers) and see if those changed elements are in the new work.
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jupiterkansas (profile), 13 Apr 2016 @ 12:25pm

I want to go back in time to 1971 and tell Led Zeppelin if they record that song, they'll have to go to court 45 years later because someone will claim it's infringing - just to see the look on their faces.
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Anonymous Coward, 13 Apr 2016 @ 12:32pm

Re: No inspiration allowed
You misspelled 'letters'. Thus, you are now liable for a $15qn fine, which is payable to Congress. For reference, that's fifteen times the amount of damages for wilful infringment.

Kind regards,
Dewey, Bookham and Howe,
representing the Letter Industry Association of America.
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Anonymous Coward, 13 Apr 2016 @ 12:33pm

Hope Zepplin Loses
There is nothing more hilarious than the devil the group sold themselves too getting their asses beat!

I really hope they lose, because maybe, just maybe there will be a snowballs chance in Hell Zepplin might say... shit... copyright has gotten out of hand.

But we all know the truth here (no chance)... go ahead Led... enjoy what is only a small slice of comeuppance. Sure the Devil gets his due but you get less, yet again, and you deserve less too!

Once Artists figure out what they have helped do to the industry, I might feel sorry for them! HA!
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Vincent Clement (profile), 13 Apr 2016 @ 12:36pm

Re:
Keep in mind that it is the estate that is suing in this case. So any money earned from a likely settlement won't even go to the original creator, it will go to his estate.
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Anonymous Coward, 13 Apr 2016 @ 12:57pm

Abolish Copyright
"Sounds like" the best thing to do.
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Anonymous Coward, 13 Apr 2016 @ 1:19pm

Re: Re:
A "jury of your peers" is only guaranteed for criminal trials where the penalty is 6 months or more (generally).

But bad jury decisions make good appeal decisions, and those are the only ones that count.

One thing that is going to hurt the plaintiffs is that it has been 20 years. Statute of limitations on federal copyright claims is 3 years from the time the violation occurred. Meaning, at most, there would be three years of violation. And it might be more limited than that.
But it could also be held to be a waiver of the right to claim copyright infringement.
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Jesse Townley (profile), 13 Apr 2016 @ 1:31pm

Re: Re:
100% insightful.

During the lawsuit between my boss Jello Biafra & 3 other ex-Dead Kennedys, their lawyer made the claim that since JB can't read sheet music, it's impossible for him to have written any music for the band. (This was a way for the other 3 to claim writing credits for the music)

Now, ANY musician can tell you that reading sheet music is NOT required in order to write a song, from a member of a garage band to the highest level classical player.

However, they felt confident enough in the jury's experience or lack thereof to state this.

(I doubt it was a deciding factor in the case which JB ultimately lost, but who knows?)
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OldGeezer (profile), 13 Apr 2016 @ 1:51pm

My Sweet Lord
It still astounds me that George Harrison lost the lawsuit that claimed he copied "He's So Fine". It was shown at the trial that there was more similarities than just the chord pattern. The judge even stated that he believed it was not intentional.

I played in cover bands as a kid and have made a few attempts at writing. Every time I thought that I had something original I would realize that it was too close to a song I already knew. Music gets ingrained int your subconscious. Songs can pop into your head without even thinking about it.

What if someone could claim copyright every variation of circle of fifths chords and sued every artist that used them?
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Lawrence D’Oliveiro, 13 Apr 2016 @ 3:17pm

Re: One thing that is going to hurt the plaintiffs is that it has been 20 years
The reason why the case is being filed now is because a new, remastered version of the recording has been released. Which resets the statute of limitations.
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Anonymous Coward, 13 Apr 2016 @ 3:23pm

Re: Re: Re:
"A "jury of your peers" is only guaranteed for criminal trials where the penalty is 6 months or more (generally)."

That's not what the Constitution says. The 7th amendment:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..."
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That One Guy (profile), 13 Apr 2016 @ 4:06pm

Re:
Legally perhaps not, but take a dozen tone-def people, tell them that 'copying' is against the law and have them listen to both songs, odds are good you'll be able to convince them that yup, that's a copy alright. Guilty as charged, only thing left is to determine how much money to award to the 'victim'.
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That One Guy (profile), 13 Apr 2016 @ 4:13pm

Re: Re: One thing that is going to hurt the plaintiffs is that it has been 20 years
That seems like it would take some... 'interesting' arguing to make sense.

If the band 'copied' the old version then you'd use the timing for that release to determine statue of limitations and whatnot. Unless Led Zeppelin is comprised of at least one Time Lord I'm pretty sure they couldn't have copied anything from the 'new, remastered version' when they wrote the song, which would make the link between the two songs tenuous at best.

(One thought comes to mind is that if they want to argue that the new release means it's a 'new' version, and therefore the statue of limitations doesn't apply, it would be funny for Led Zeppelin to argue that it was their song that inspired the other, rather than the other way around, given Led Zeppelin's song came 'first'.)
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Kronomex, 13 Apr 2016 @ 4:36pm

And as in all of these sorts of cases the only true winners are the leeches commonly known as lawyers.
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Anonymous Coward, 13 Apr 2016 @ 5:58pm

man behind the curtain
Keep in mind that Led Zeppelin came from a bygone era when many musicians actually did write, arrange, and produce their own songs. Rather than simply pretending to.

Although song *ripoffs* might appear much worse today, it only seems that way because we now have a situation when Max Martin and his small posse of songwriter collegues write --or ghostwrite-- virtually all the "hit" songs recorded and performed by all the big-money acts.

Max Martin is unlikely to sue himself over copyright infringement.
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Anonymous Coward, 13 Apr 2016 @ 7:49pm

Mike Masnick just hates it when copyright law is enforced. Bawky bawk bawk, Mikey! LOL! : )
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trollificus (profile), 14 Apr 2016 @ 1:11am

I'm pretty sure Randy heard "Stairway to Heaven". He never sued.

When the result of a law is "ghoulish money-grabs by lawyers to benefit people who have created nothing", it's safe to conclude the law is bad. I was kind of looking for a characterization of such law more sophisticated than just "bad", but no, that's about exactly right.

Yeah, it would be good if the members of Led Zep were to come down on the side of the angels regarding copyright law, but as we all know, it's all about the big IP aggregators getting richer, not the artists.

And even that "benefit" is secondary to the apparent primary goal of the law here, which is more litigation, because the lawyers on both sides "win".

Benefit to society, as was actually mentioned in the way long ago??? A very distant third or fourth consideration.
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Anonymous Coward, 14 Apr 2016 @ 1:47am

In other news.... David Hasselhof just shit himself.
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Anonymous Coward, 14 Apr 2016 @ 1:47am

In other news.... David Hasselhof just shit himself.
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blue_notch, 14 Apr 2016 @ 2:18am

Pirate mike supporting theft from creators as asual.
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Anonymous Coward, 14 Apr 2016 @ 5:05am

Re:
"When the result of a law is "ghoulish money-grabs by lawyers to benefit people who have created nothing", it's safe to conclude the law is bad."

It's just capitalism.
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Anonymous Coward, 14 Apr 2016 @ 5:20am

Re:
Anonymous64 just hates it when due process is enforced.
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Anonymous Coward, 14 Apr 2016 @ 5:40am

Who owns the copyright upon musical scales?

Those damn thieving pirate kids in piano class!
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Mason Wheeler (profile), 14 Apr 2016 @ 6:51am

Re: Re: Re:
20 years? A comment below (and Wikipedia) says Stairway to Heaven was released in 1971. That's 45 years ago, not 20.
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nasch (profile), 14 Apr 2016 @ 8:44am

Similar feel
Either way, judge Klausner thinks the songs have a similar "feel"

So much for the idea / expression dichotomy.
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Monday (profile), 14 Apr 2016 @ 9:26am

Roots of Coincidence
Judge Klausner thinks there should be a Subjective assessment...

Right there. There it is! Zep is in trouble! Subjective??? What the hell is he trying to do? Nothing good really comes out of a subjective point of view. It gets all twisted and distorted, and people are bringing in their personal crap and then you get all these people deciding someone or something else's fate.

Coincidence is very convincing. Why do you suppose there is so much religion...

I'm just saying.
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Jeremy2020 (profile), 14 Apr 2016 @ 11:01am

I'd hire the guys from the 2nd video to be the centerpiece of my defense
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Anonymous Coward, 14 Apr 2016 @ 8:38pm

Okay, I just listened to Taurus. There was no obvious similarity to Stairway to Heaven, and the musical passage in question reminded me more of Harry Chapin's "WOLD" than SoH.
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Wendy Cockcroft, 15 Apr 2016 @ 2:36am

...that's what years of the big legacy industries brainwashing the public on copyright has resulted in.

Couple of things:

1) I don't believe there's any such thing as brainwashing on the grounds that people have freedom to choose. That they tend to make decisions about what to believe and how to act based on appeals to emotion or to their personal prejudices simply means that some people are easier to manipulate than others because they're too damn lazy to think for themselves. This opinion has been borne out many times during arguments over those things I feel strongly about. Typically, the person I'm arguing with resorts to logical fallacies or "da feelz" when not changing the subject or moving the goalposts. We see this happen right here in the comments on TD.

2) As I keep on saying, Ancient Greek Cassandra-style*, if you use the words and phrases the legacy industries have framed their arguments with, you end up on the back foot desperately pushing back but not achieving very much. If you put them in the driver's seat, they will steer the damn car. This happens when you use their words.

The only way to win this game from where I sit is to educate the public on the Constitutional role of Copyright, patents, and trademarks, explain that the rights and privileges pertaining to them are not things you can erect a fence around and control as a territorial property right, and point out that anyone who tells them otherwise is a liar and a fraud. And we will need to frame our arguments using different words, more often and more widely or you'll still be writing posts like this a decade from now. I'm either right or I'm wrong. If I'm wrong, why do copyright terms keep ratcheting upwards? Terms won't be reduced to a sensible level till we've won the argument and we can't do that unless we're attacking the maximalists' position harder than they're attacking our reasonable position.

*No one pays attention to the point I'm making.
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Monday (profile), 15 Apr 2016 @ 9:23am

Re:
AWESOME!!!

I'm keeping this...
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