Led Zeppelin’s copyright win turns out to be one for the records

By LegalMatters Staff • Led Zeppelin’s victory in its long-running copyright infringement battle over Stairway to Heaven is in tune with what the law allows, says Toronto intellectual property lawyer John Simpson.

“I’m not surprised. I think the court got it right. If there is one takeaway it would be that it reminds me how policy-driven the analysis of what is protected can be in a copyright case,” says Simpson, principal of IP and new media law boutique Shift Law. “Even more generally it drives home to me why it is so much fun to be a copyright lawyer.”

The Guardian reports that an 11-judge panel affirmed a 2016 judgment that found no proof that Zeppelin’s 1971 song breached the copyright of Taurus, written by Spirit’s Randy Wolfe.

The lawsuit was launched in 2014 and two years later a jury in Los Angeles found in favour of Led Zeppelin. That ruling was overturned by a three-judge panel in San Francisco in 2018, leading to the latest decision on March 9.

Simpson, who was not involved with the case but comments generally, says the case is interesting for several reasons.

Sounds similar

“Definitely if you heard the song Taurus on the radio you would say it sounds a lot like Stairway to Heaven. Hence these lawsuits,” he tells LegalMattersCanada.ca. “This case would not have gone as far as it did if there wasn’t a striking similarity between the songs.”

But a resemblance between two songs does not necessarily constitute copyright infringement, Simpson says.

“There is a striking similarity but what’s important to note is that it is the composition that is at issue, not the sound, so the jury, in this case, wasn’t allowed to hear the songs,” he says. “The jury was looking at the composition on a piece of paper. That’s how they were to assess the case.”

The Guardian reports that Jimmy Page, who was sued along with Led Zeppelin singer Robert Plant and another bandmate, John Paul Jones, testified in 2016 that the chord sequence at the heart of the lawsuit has “been around forever.”

Simpson says that chord sequence was essential to the case.

Expert evidence

“Based on expert evidence considered by the appeal court, it was determined that the descending chromatic scale in both these songs was not an original feature of the plaintiff’s composition,” he says.

Simpson says “originality is relative” when it comes to applying standards in a copyright case.

“The whole decision turned on what the court considered to be original and unique. With this musical composition, the court applied a very high standard to what constitutes originality, finding that the descending chromatic scale was basically something that had been around for 300 years and it was only what was original above and beyond that was protectable,” he says. “That is a very high standard and that is not a standard you would expect to see in most copyright infringement cases.”

Simpson says with any copyright case it is important to note that there’s no infringement when there’s independent creation.

“If I wrote something, it could be a piece of music, it could be a poem or some source code, and you never saw it, never had access to it and you – inspired by the same things that I was inspired by – came up with the same thing, I would not be able to sue you for copyright infringement because you didn’t copy my work. You came up with it on your own,” he says. “Copying is always the key to a copyright infringement case.”

In the Zeppelin case “it just so happens that Jimmy Page wrote the music for Stairway to Heaven while he had a copy of Taurus,” Simpson says.

Toured with Spirit

“Led Zeppelin was touring with Spirit in the ’60s. They heard that song, Page had a copy of the record. That was an easy thing to prove,” he says. “The key to this case or at least what got it this far was that Jimmy Page did have the song. He heard it. He had access to it. But the court only considered the subject matter of the plaintiff’s work that was original.”

Simpson explains chord progressions in music have been repeated countless times in history, which is why it made sense for the court to put a high standard on what is considered to be copyright infringement.

“The reason they applied that standard is because all music is evolving and everyone should be free to be inspired by someone else’s tune and create their modification of it,” he says. “It’s not like every song can be created in a vacuum. That’s the policy concern at the heart of this.”

‘Policy-driven concept’

Simpson says the test for originality “is always a very policy-driven concept and that’s why courts would be reluctant to have a very low threshold for originality in music.”

“Music, by its nature, is something that evolves and one piece inspires someone else and that’s part of its appeal,” he says. “It is different because it is very subjective.”

Music is “less concrete than text, which makes it more difficult than in any other art form to separate what is protectable from what is not protectable,” Simpson says.

“There are so many intangible aspects in a song,” he says.

Simpson says when it comes to copyright enforcement, it always depends on “circumstances and what you want to protect.

“In music, if you set the standard really low then arguably every rock and roll song since Chuck Berry has been infringing someone’s copyright because how many chords are in a typical rock song?” he adds. “That evolvement is what makes music fun. It’s an art form that is constantly building on the shoulders of giants.”