9th Circuit Never Misses A Chance To Mess Up Copyright Law: Reopens Led Zeppelin 'Stairway To Heaven' Case
from the copyrightable-elements dept
Well, this is depressing. Back in 2016, we wrote about yet another copyright infringement case where we feared the impact on creativity in music. At issue was whether or not the band Led Zeppelin had infringed on the copyright of Randy Wolfe (aka Randy California) who had written the song Taurus for his band Spirit. Taurus has some similarities to Led Zeppelin's classic "Stairway to Heaven":
If you listen to that, you might think that the two songs sound pretty similar at points, and thus perhaps Led Zeppelin copied Taurus, violating the copyright on the song. But things are much more complicated than that. For example, it certainly could be argued that both of those songs actually sound remarkably similar to J.S. Bach's Bouree In E Minor, which is absolutely in the public domain:
As that video shows, the same basic melody can be found in a bunch of songs, including Henry Purcell's "Dido's Lament" (which predates even the Bach song), as well as Rogers and Hart's "Funny Valentine," Arthur Hamilton's "Cry Me A River" and a bunch of other songs, which all predate Taurus. This is, of course, the nature of music. There are themes and melodies and concepts and cord structures that get repeated over time, sometimes by accident, sometimes through homage, and sometimes by coincidence.
So when it comes to copyright it's important to look at what is actually covered by the copyright, which goes way beyond "hey, do these songs sound similar?" Unfortunately, many courts have messed this up over the years, including a few that came up with a ridiculous "substantial similarity" test, rather than actually comparing the copyright-protected elements of the songs. One such case that got this wrong is the infamous Blurred Lines case, in which even though the copyright-protected elements of two songs were totally different, it was decided that there was copyright infringement.
That's why we were pretty stunned, back in the summer of 2016 that a jury sided with Led Zeppelin. Part of the reason why that worked was that the jury was not allowed to just listen to the two songs, because the copyright on the sound recordings was not at issue (indeed, at the time of Taurus, there was no federal copyright to be had on the sound recording). Thus, they had to look at what was actually covered by copyright, which is much more limited. Of course, this is the correct way to do things, because if we're looking for copyright infringement, it seems ridiculously unfair to allow the jury to be influence by content that is not protectable under copyright.
So, the end result in the district court was the right one. But... this is the 9th Circuit we're talking about, and when it comes to copyright, it will always figure out how to make things worse. And that's what it's done by vacating the original order and ordering a brand new trial, with conditions that will make life much more difficult for Led Zeppelin (hat tip to Eriq Gardner at The Hollywood Reporter for spotting this first).
The ruling, by Judge Richard Paez, should be anger-inducing for copyright nerds. It basically picks up on a few earlier cases that make the nonsensical claim that if you have greater "access" to the earlier work, a copyright plaintiff needs to show less similarity to argue copyright infringement:
In cases such as this one where there is no direct evidence of copying, the plaintiff “can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.” Rentmeester, 883 F.3d at 1117. “When a high degree of access is shown,” a lower amount of similarity is needed to prove copying. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (citation omitted). “To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff’s work. They just need to be similarities one would not expect to arise if the two works had been created independently.”
This makes literally no sense under the law. How can anyone say that you "need not involve protected elements of the plaintiff's work." If you're not involving the part actually protected by copyright, how the hell can you claim there's copyright infringement? But, because of 9th Circuit precedents, the court notes that only applies to the so-called "extrinsic" test for infringement, but there must also be an "intrinsic" test, in which we ignore all that and go with our gut feeling on whether or not the songs sound kind of similar. Which, of course, is madness.
To prove “unlawful appropriation” a higher showing of substantial similarity is needed. Id. The works must share substantial similarities and those similarities must involve parts of the plaintiff’s work that are original and therefore protected by copyright. Id. To determine whether an allegedly infringing work is substantially similar to the original work, we employ the extrinsic and intrinsic tests. The extrinsic test is an objective comparison of protected areas of a work. This is accomplished by “breaking the works down into their constituent elements, and comparing those elements” to determine whether they are substantially similar. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). Only elements that are protected by copyright are compared under the extrinsic test. Id. The intrinsic test is concerned with a subjective comparison of the works, as it asks “whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000)
From there, the court makes a slightly stronger argument, that even if you have non-protectable components, the arrangement itself can be covered by copyright (even if you're arranging public domain music -- so long as it's done in a new and novel manner). And here, the ruling says that the lower court failed to inform the jury that the arrangement alone could be covered by copyright, even if the elements were not:
Nowhere did the jury instructions include any statements clarifying that the selection and arrangement of public domain elements could be considered original. Jury Instruction No. 20 compounded the errors of that omission by furthering an impression that public domain elements are not protected by copyright in any circumstances. This is in tension with the principle that an original element of a work need not be new; rather, it need only be created independently and arranged in a creative way. See Feist Publ’ns, 499 U.S. at 345, 349; see also Swirsky, 376 F.3d at 849. Jury Instruction Nos. 16 and 20 in combination likely led the jury to believe that public domain elements—such as a chromatic scale or a series of three notes—were not protectable, even where there was a modification or selection and arrangement that may have rendered them original.
While this may seem reasonable on its face, it's complicated greatly by the fact that the court also rules that, unlike in the first trial, the court should allow the actual sound recordings to be played for the jury. While it first notes that (contrary to the plaintiff's wishes), the deposit copy of the song represents the actual copyright covered material rather than the sound recording, the jury should be able to hear the sound recording (which, again, includes plenty of non-copyrightable material). The district court, correctly, worried that the jury would likely not be able to separate out the copyright-protect and non-copyright protected material. But the appeals court doesn't seem to care:
The district court excluded the sound recordings under Federal Rule of Evidence 403, finding that “its probative value is substantially outweighed by danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . .” Fed. R. Evid. 403. Here, the district court abused its discretion in finding that it would be unduly prejudicial for the jury to listen to the sound recordings in order to assess Page’s access to “Taurus.” The district court acknowledged that the recordings were relevant to whether Page had access to “Taurus,” as Page would have heard and allegedly copied a recording of “Taurus.” The district court was concerned, however, that allowing the jury to hear the recordings would confuse them.
The appeals court decides that it's okay for the jury to hear the recordings... if it's for the purpose of observing Jimmy Page listening to the recordings. Really.
Although the jury could still draw conclusions and inferences from Page’s demeanor during his testimony, allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions. Limiting the probative value of observation was not proper here, as the risk of unfair prejudice or jury confusion was relatively small and could have been reduced further with a proper admonition. For example, the district court could have instructed the jury that the recordings were limited to the issue of access and that they were not to be used to judge substantial similarity.
Either way, the case is going back to the lower court for a new round, and now that the jury is going to get to hear the songs, all bets are off on how this turns out. One hopes that with strong jury instructions a jury might recognize how limited the actual copyright is on Taurus, but given the results of the Blurred Lines case, that seems like a long shot. Frankly, it wouldn't be that surprising to see this case settle before a new trial actually happens.
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Filed Under: copyright, jimmy page, led zeppelin, music, randy california, randy wolfe, robert plant, similarity, spirit, stairway to heaven, taurus
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Originality is an abstraction, often
Next up, I think if they are going to listen to the music, it should be with the public domain portions silenced. Since the 9th Circuit is acknowledging that there is public domain present, those parts should not be allowed to influence jury members, who won't know which parts are or are not public domain.
And finally, they should include the J.S. Bach's Bouree In E Minor along with Henry Purcell's "Dido's Lament" (which predates even the Bach song), as well as Rogers and Hart's "Funny Valentine," Arthur Hamilton's "Cry Me A River" so that the full spectrum of who might have copied what might come into play. Maybe they should play a variety of arrangements of each of those, just to make things clearer. Then the rest of us will find out just how discerning those jurors might be. /s (at least for this part)
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Re: Originality is an abstraction, often
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12-bar blues anyone?
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It makes perfect sense, because the test is determining whether there was copying in fact, i.e., whether the defendant did in fact copy from the original work. If the defendant copied a bunch of unprotected elements, that is probative of actual copying. This is a different question than whether the copying in unlawful, i.e., whether there is substantial similarity, which is what you're conflating this with. You're just confused.
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Well, if all the songs use the same notes, but have different arrangements (an idiocy in and of itself, in my mind) then they should all have copyright protection, and there should be no infringement by copying in any of them
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Step 1: Determine whether the defendant actually copied from the plaintiff's work. It doesn't matter whether the material copied is protected or not since this step is only concerned with whether there was any copying at all. If there's no actual copying, there's no infringement and the analysis is done.
Step 2: Determine whether elements that were copied were protected. This is where you filter out the unprotected stuff (under the extrinsic test). If there were only unprotected elements copied, there is no infringement. But you don't do this step until you've determined that there was copying in the first place.
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No one I know has ever said laws make sense, with respect to the laws we have rather than the laws we should have.
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All works borrow from the public domain. But that doesn't mean they don't have protectable elements. All of the notes on a scale are in the public domain, but I can put them together in an original way that is protectable. Note that original does not mean novel. It just means I didn't copy, and there's some modicum of creativity. Mike says it's protectable "so long as it's done in a new and novel manner," but that's not the test. There's no need for novelty, only originality.
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copyright old songs
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If the ruling stands, then this song should result in a massive multi-way lawsuit.
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Well, I wouldn't say never.
Alsup kept doing it right with Oracle v Google
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(when all harmonious tunes are in use, people will have to start working through the shrieking discords for their new songs)
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https://www.youtube.com/watch?v=-MBKJDmE-OQ
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when a court meets a subjective level of stupid...
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Re: when a court meets a subjective level of stupid...
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wow.
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I will say that the spirit song does bear an uncanny resemblence to stairway to heaven. I also do not see how anyone could see any similarity between Bach's Bouree from the Lute Suite in E minor and the other two songs. That's more than a bit of a stretch.
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Led Zepplin in 9th Circuit Court
A hint for the brief--have the notes of the chords clearly represented on ledger lines--sheet music--available in a chart form that makes it possible to visualize the similarities of the pattern of the chord progression of each of these somewhat similar tunes. Ideally, displayed in the same or similar key--not too much clutter or effort needed to see the intervals, so to compare measure by measure in columns. Having entire stanzas available to compare would demonstrate clearly how substantial, or not, the similarities really are.
In order to effectively persuade court members, who may or may not have as much auditory memory skills as a dedicated musician, using a visual aid to represent the artists' creations, is better evidence than slippery bits of auditory memory. The similarities in subjective experience is simply the pleasure of a universally available repetitive musical pattern--no more a copyright violation than using reusing regular geometrical figures would be for an architect.
Maybe James Humberstone would like to be called as an expert witness! Watch his TEDx Oxford video for the fullest explanation of the aha!phenomenon.
Best wishes for success in court from this long-time Robert Plant fan--if anyone can hold off the 9th Circuit from further muddying copyright law, I believe Led Zeppelin can do it!
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