California appeals court takes unusual step in copyright case

Glenn W. Peterson

Five years ago, the trustee of the estate of a 1960s rock musician filed a lawsuit against members of the band Led Zeppelin, stating that their hit “Stairway to Heaven” infringed copyright by stealing its opening from an earlier song. During a 2016 trial, a jury found in favor of Led Zeppelin songwriters Jimmy Page and Robert Plant. Claiming that the jury had not received proper instructions, an appellate court ordered a new trial. The Ninth Circuit Court of Appeals in California has since taken the unusual step to hear the case en banc. In other words, the full panel of 11 judges will hear the case in the interest of determining authorship of the song.

A Stanford Law School professor states that the most difficult copyright cases are those involving music. It is extremely rare for an appeals court to take a copyright case en banc. Following several well-publicized cases in which popular musicians have had to pay damages other artists for plagiarism, those within and without the music industry hope that the Ninth Circuit will provide clarity regarding what is and is not acceptable in music borrowing.

At issue is the work of Randy Wolfe, a musician and songwriter who performed in the 1960s with the band Spirit under the stage name of Randy California. The contention is that “Stairway to Heaven,” released in 1971, mimics a 1968 song by Wolfe called “Taurus” in its opening acoustic section. A Supreme Court ruling in 2014 allowing copyright holders to bring infringement suits even after many years have passed prompted the trustee of the Wolfe estate to bring a lawsuit against Page and Plant. Wolfe died in 1997, and although he never brought a copyright suit himself, he had publicly expressed the belief that Plant and Page had ripped off his song.

Lawyers for Page and Plant argued that there was 300 years’ worth of music history containing the same descending chromatic scale and chord progression found in “Taurus,” citing “Chim Chim Cher-ee” from the 1964 movie musical “Mary Poppins” as an example. Nevertheless, this is not the first time someone has alleged that Led Zeppelin music has infringed on copyright, with the band having settled multiple claims in the past.

It could take many more months before the appeals court issues a decision, and even that may not be the end of the proceedings. In the meantime, those involved in copyright cases may find it helpful to consult an attorney.