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.
Filed Under: copyright, jimmy page, led zeppelin, music, randy california, randy wolfe, robert plant, similarity, spirit, stairway to heaven, taurus
