<b><i>Suing Led Zeppelin</b></i> Can a Copyright Infringement Plaintiff Rewrite Rock and Roll History?

'Trampled Under Foot'

The name plaintiff in Skidmore is Michael Skidmore, the trustee of the Randy Craig Wolfe Trust. Wolfe was the guitarist in Spirit and performed under the name Randy California. He died in 1997. The core allegation of the complaint is that California authored an instrumental entitled “Taurus,” elements of which were copied and utilized in “Stairway to Heaven.”

Compared to the dry recitations of a standard legal pleading, the Skidmore complaint makes for highly entertaining reading. For starters, the headings and captions are written in the familiar ornate Art Nouveau-style font that appears on Led Zeppelin's album Houses of the Holy and throughout Led Zeppelin-related artwork and merchandise. Further, the complaint spins an engaging tale of how Spirit and Led Zeppelin toured together in 1968 and 1969, before Led Zeppelin became a household name, and how Led Zeppelin allegedly took cues from Spirit's adventurous psychedelic sound, going so far as to cover a Spirit song in their set. Any rock music fan will revel in these details. The complaint also compiles a table of numerous other instances in which Led Zeppelin has been accused of musical plagiarism, some of which purportedly resulted in credit being given to earlier songwriters (most notably, according to the complaint, in instances involving bluesmen Willie Dixon and Howlin' Wolf). Finally, in addition to claims for direct, contributory and vicarious copyright infringement, the complaint adds a count for “Falsification of Rock N Roll History,” making this case the first in which that particular theory has been asserted (at least insofar as the authors are aware).

The two songs at issue ' “Taurus” and “Stairway” ' bear at least one undeniable similarity: each song contains a chord sequence consisting of 12 beats, over which a highly similar guitar melody featuring a bass line that descends in half-step intervals is played in the key of A-minor. In “Taurus,” the chord sequence does not appear until approximately 45 seconds into the piece; in “Stairway,” this sequence serves as the song's introduction. Both passages last for approximately eight seconds, following which they resolve in entirely different ways. The chord sequence at issue appears four times within “Taurus” and six times in “Stairway.”

Beyond the evident similarity of this A-minor chord sequence, “Taurus” and “Stairway” are very different songs. The former is a brief (2 minute, 40 second) ethereal instrumental that features prominent use of a string section; it never develops into anything resembling a conventional rock song. In contrast, Led Zeppelin's epic eight-minute song features lyrics and evolves first into a mid-tempo rock song, then into full-fledged hard rock ending with a blistering Jimmy Page guitar solo and Robert Plant's high-pitched vocals. That the songs contain arguably the same chord progression is not dispositive of the case, nor is the fact that the songs ultimately assume quite different forms.

'Your Time Is Gonna'Come' ' or Is It?

It is, to say the least, puzzling why Randy California and his estate waited more than 40 years to bring this case. The complaint is silent on the issue. At least one article published about the dispute cites Randy California's lack of funds as the reason for the delay. (See , Vernon Silver, “Stairway to Heaven: The Song Remains Pretty Similar,” Businessweek, May 15, 2014.) Given the amount of money potentially at stake and the ready availability of alternative legal fee structures, such as contingency fee arrangements, it is curious why it has taken this long.

In any case, the suit is timely under copyright law, a conclusion bolstered by the Supreme Court's recent decision in Petrella v. Metro-Goldwyn-Mayer Inc., 134 S.Ct. 1962 (2014). The Petrella decision, which reversed the decision in a case by the U.S. Court of Appeals for the Ninth Circuit, held that the equitable doctrine of laches cannot be invoked to bar a copyright claim brought within the three-year statute of limitations set forth in the U.S. Copyright Act, 17 U.S.C. '107(b). It has long been held that copyright law follows a “separate-accrual rule” when it comes to assessing whether a claim has been filed within the statute of limitations. That is, “when a defendant commits successive violations, the statute of limitations runs from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong.” Petrella, at 1969.

Accordingly, a fresh three-year statute of limitations begins each time a new wrong has been committed; in this case, each new “use” of “Stairway,” whether by, for example, reproduction or public performance, reopens the statute of limitations. This does not mean that a would-be plaintiff may recover damages for all infringing acts dating back to the commencement of the defendant's infringing conduct; rather, a plaintiff can seek damages for the three-year window prior to bringing suit.

Notwithstanding this approach, prior to Petrella, the Ninth Circuit took the position that the equitable defense of laches remained available to defendants in circumstances involving gross delay. Noting that the Copyright Act provides a statute of limitations and that the Act addresses the issue of delay by barring damages accruing prior to three years before commencing litigation, the Supreme Court held that the laches doctrine “cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window.” Prior to the Petrella decision, a case brought 42 years after the fact might have been deemed sufficiently tardy to warrant dismissal on laches grounds. (Indeed, the Petrella case itself involved a delay of “only” 18 years.) However, in the wake of the Petrella decision, there seems to be little question that Skidmore v. Led Zeppelin is not time-barred. Note that Skidmore was filed two days after publication of the Supreme Court's Petrella decision.

Are Critical Portions of the Songs'Substantially Similar?

The complaint raises potentially interesting issues concerning ownership of the rights in “Taurus.” According to the complaint, Randy California signed an exclusive songwriter's contract with Hollenbeck Music in August 1967, but it proceeds to aver that “Taurus” predated the contract, and moreover, that the 1967 contract is void due to the fact that it was never approved by a court and that California was a minor when he signed it.

Proof of Led Zeppelin's access to “Taurus” should not be difficult for Skidmore to establish. The threshold for proving access in copyright cases is low; in the words of the Ninth Circuit, a defendant need only have had a “reasonable opportunity” to hear the allegedly copied work. Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000). Given that Led Zeppelin and Spirit evidently performed shows together, with Led Zeppelin covering a Spirit number entitled “Fresh Garbage,” establishing the access element of the infringement test should be little problem here.

The more challenging task for Skidmore will be to establish that “Stairway” is substantially similar to original, protectable expression contained in “Taurus.” In evaluating this point, the existence or absence of similar “prior art” may turn out to be an essential component of the defendant's case. The existence of relevant prior art can support a defendant's argument that it copied or derived inspiration from source materials that predate the plaintiff's work. “Taurus” may not be the first song to feature a minor-key chord progression containing descending half-step intervals; among other familiar tunes that employ this identical chord pattern is the chorus to the Beatles “Something” (although, it should be noted, that the release of “Something” post-dates Spirit's debut album by more than 18 months).

Led Zeppelin's attorneys will no doubt be mining back musical catalogs for other similar examples. In the event Led Zeppelin is unable to identify specific prior art works it copied or that served as inspiration, Skidmore may argue that unconscious copying occurred. A similar argument ensnared George Harrison in Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976), aff'd sub nom, ABKCO Music Inc. v. Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983), where George Harrison's song “My Sweet Lord” was famously found to infringe The Chiffons' hit “He's So Fine,” notwithstanding the court's belief that Harrison had not intended to copy.

The defendants will need to be careful not to rely too heavily on the argument that the songs' only similarities lie in that 12-beat chord sequence ' the fact that the two songs diverge is immaterial to the issue of liability if the court finds that the defendants copied original expression. “Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.” Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987). Skidmore will undoubtedly argue here that Led Zeppelin incorporated the “hook,” i.e., the central thematic element, from “Taurus” and used that element as the focal point for “Stairway to Heaven.”

'Celebration Day' If'Skidmore Prevails?

The Skidmore complaint claims this case is about more than a potential monetary payout, at one point stating: “Randy California deserves writing credit for 'Stairway to Heaven' and to take his place as an author of Rock's greatest song.” Elsewhere, the complaint demands: “Equitable relief should include an order that Defendants and the Copyright Office be made to include Randy Craig Wolfe (aka Randy California) as a writer of 'Stairway to Heaven.'” Of course, if California is acknowledged as a co-writer of the song ' which is the most he can expect given that his authorship claim only pertains to one section of “Stairway” ' his trust will be entitled to enjoy a share of future revenues generated by the song's exploitation.

As to additional remedies, Skidmore, if he prevails, will be limited to a recovery that captures profits earned in the three years immediately preceding suit. Although the peak years of Led Zeppelin's back catalog are behind it, the band recently reissued its first three albums and is in the processing of releasing all nine of its studio albums, which includes Led Zeppelin IV. But as to sales in the past three years, the defendants will be allowed to “chip away” at any profits-based monetary recovery by introducing evidence of permissible deductible costs and by arguing that profits should be “apportioned” to reflect the fact that sales of “Stairway” are attributable to factors other than the descending A-minor chord progression, such as the band's general popularity, the presence and strength of other songs on Led Zeppelin IV, and the presence of many other musical elements within “Stairway” that contribute to its overall sound.

In the final analysis, however, no matter how strong Led Zeppelin's apportionment argument is, assuming liability for infringement is established, the cases are clear that a prevailing plaintiff should be given the benefit of the doubt with respect to any uncertainty. See, e.g., Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988) (“Confronted with imprecision in the computation of expenses, a court should err on the side of guaranteeing the plaintiff a full recovery.”)

Finally, if the copyright registration for “Taurus” predates the time that Led Zeppelin's copying commenced ' and, according to the complaint, the copyright was registered on Feb. 5, 1968 ' then Skidmore will be able to recover attorneys' fees in the litigation. (Interestingly, the complaint alleges a 1968 registration date, but it fails to attach the original registration certificate, though it does attach a renewal certificate dating from 1996.)

Coda

As of press time for this article, Led Zeppelin and the other co-defendants in the case had not answered the complaint. Fans of rock music and observers of copyright law alike will no doubt be keeping a close eye on developments in this colorful case.

Christopher P. Bussert ([email protected]) and James A. Trigg ([email protected]) are Partner and Counsel, respectively, in the Intellectual Property Group at Kilpatrick Townsend & Stockton LLP. They specialize in copyright law and have litigated music copyright cases on behalf of both plaintiffs and defendants.

In one of the many memorable scenes from the film Wayne's World , Wayne tests guitars in a music store. Laying his hands on a beautiful white Fender Stratocaster ' “Excalibur” he calls it ' Wayne begins to gently pluck a somber, minor-key melody. Suddenly, the store attendant chokes the guitar's neck and points Wayne to a sign on the wall: “NO Stairway to Heaven.” The scene is funny because of the sheer ubiquity of that brooding guitar line. Led Zeppelin's “Stairway to Heaven,” released on the 1971 album Led Zeppelin IV , has been blasted from speakers at countless parties and proms. It has been a mainstay of classic rock radio for decades. And, yes, learning those opening chords to the song has been a rite of passage for many an aspiring guitarist.

Imagine Wayne's disillusionment if he were to learn that Led Zeppelin purloined “Stairway” from another band. That allegation is at the heart of Skidmore v. Led Zeppelin, 2:2014cv03089, a recently filed copyright lawsuit in the Eastern District of Pennsylvania that asserts Led Zeppelin copied the introductory descending guitar figure in “Stairway to Heaven” from a 1968 instrumental by the American progressive rock band Spirit.

This article examines the allegations of that lawsuit, explains why the suit is not stale despite being brought 42 years after the release of “Stairway,” and discusses the challenges that the plaintiff must overcome if he is to prevail in the litigation.

'Trampled Under Foot'

The name plaintiff in Skidmore is Michael Skidmore, the trustee of the Randy Craig Wolfe Trust. Wolfe was the guitarist in Spirit and performed under the name Randy California. He died in 1997. The core allegation of the complaint is that California authored an instrumental entitled “Taurus,” elements of which were copied and utilized in “Stairway to Heaven.”

Compared to the dry recitations of a standard legal pleading, the Skidmore complaint makes for highly entertaining reading. For starters, the headings and captions are written in the familiar ornate Art Nouveau-style font that appears on Led Zeppelin's album Houses of the Holy and throughout Led Zeppelin-related artwork and merchandise. Further, the complaint spins an engaging tale of how Spirit and Led Zeppelin toured together in 1968 and 1969, before Led Zeppelin became a household name, and how Led Zeppelin allegedly took cues from Spirit's adventurous psychedelic sound, going so far as to cover a Spirit song in their set. Any rock music fan will revel in these details. The complaint also compiles a table of numerous other instances in which Led Zeppelin has been accused of musical plagiarism, some of which purportedly resulted in credit being given to earlier songwriters (most notably, according to the complaint, in instances involving bluesmen Willie Dixon and Howlin' Wolf). Finally, in addition to claims for direct, contributory and vicarious copyright infringement, the complaint adds a count for “Falsification of Rock N Roll History,” making this case the first in which that particular theory has been asserted (at least insofar as the authors are aware).

The two songs at issue ' “Taurus” and “Stairway” ' bear at least one undeniable similarity: each song contains a chord sequence consisting of 12 beats, over which a highly similar guitar melody featuring a bass line that descends in half-step intervals is played in the key of A-minor. In “Taurus,” the chord sequence does not appear until approximately 45 seconds into the piece; in “Stairway,” this sequence serves as the song's introduction. Both passages last for approximately eight seconds, following which they resolve in entirely different ways. The chord sequence at issue appears four times within “Taurus” and six times in “Stairway.”

Beyond the evident similarity of this A-minor chord sequence, “Taurus” and “Stairway” are very different songs. The former is a brief (2 minute, 40 second) ethereal instrumental that features prominent use of a string section; it never develops into anything resembling a conventional rock song. In contrast, Led Zeppelin's epic eight-minute song features lyrics and evolves first into a mid-tempo rock song, then into full-fledged hard rock ending with a blistering Jimmy Page guitar solo and Robert Plant's high-pitched vocals. That the songs contain arguably the same chord progression is not dispositive of the case, nor is the fact that the songs ultimately assume quite different forms.

'Your Time Is Gonna'Come' ' or Is It?

It is, to say the least, puzzling why Randy California and his estate waited more than 40 years to bring this case. The complaint is silent on the issue. At least one article published about the dispute cites Randy California's lack of funds as the reason for the delay. (See , Vernon Silver, “Stairway to Heaven: The Song Remains Pretty Similar,” Businessweek, May 15, 2014.) Given the amount of money potentially at stake and the ready availability of alternative legal fee structures, such as contingency fee arrangements, it is curious why it has taken this long.

In any case, the suit is timely under copyright law, a conclusion bolstered by the Supreme Court's recent decision in Petrella v. Metro-Goldwyn-Mayer Inc., 134 S.Ct. 1962 (2014). The Petrella decision, which reversed the decision in a case by the U.S. Court of Appeals for the Ninth Circuit, held that the equitable doctrine of laches cannot be invoked to bar a copyright claim brought within the three-year statute of limitations set forth in the U.S. Copyright Act, 17 U.S.C. '107(b). It has long been held that copyright law follows a “separate-accrual rule” when it comes to assessing whether a claim has been filed within the statute of limitations. That is, “when a defendant commits successive violations, the statute of limitations runs from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong.” Petrella, at 1969.

Accordingly, a fresh three-year statute of limitations begins each time a new wrong has been committed; in this case, each new “use” of “Stairway,” whether by, for example, reproduction or public performance, reopens the statute of limitations. This does not mean that a would-be plaintiff may recover damages for all infringing acts dating back to the commencement of the defendant's infringing conduct; rather, a plaintiff can seek damages for the three-year window prior to bringing suit.

Notwithstanding this approach, prior to Petrella, the Ninth Circuit took the position that the equitable defense of laches remained available to defendants in circumstances involving gross delay. Noting that the Copyright Act provides a statute of limitations and that the Act addresses the issue of delay by barring damages accruing prior to three years before commencing litigation, the Supreme Court held that the laches doctrine “cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window.” Prior to the Petrella decision, a case brought 42 years after the fact might have been deemed sufficiently tardy to warrant dismissal on laches grounds. (Indeed, the Petrella case itself involved a delay of “only” 18 years.) However, in the wake of the Petrella decision, there seems to be little question that Skidmore v. Led Zeppelin is not time-barred. Note that Skidmore was filed two days after publication of the Supreme Court's Petrella decision.

Are Critical Portions of the Songs'Substantially Similar?

The complaint raises potentially interesting issues concerning ownership of the rights in “Taurus.” According to the complaint, Randy California signed an exclusive songwriter's contract with Hollenbeck Music in August 1967, but it proceeds to aver that “Taurus” predated the contract, and moreover, that the 1967 contract is void due to the fact that it was never approved by a court and that California was a minor when he signed it.

Proof of Led Zeppelin's access to “Taurus” should not be difficult for Skidmore to establish. The threshold for proving access in copyright cases is low; in the words of the Ninth Circuit, a defendant need only have had a “reasonable opportunity” to hear the allegedly copied work. Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000). Given that Led Zeppelin and Spirit evidently performed shows together, with Led Zeppelin covering a Spirit number entitled “Fresh Garbage,” establishing the access element of the infringement test should be little problem here.

The more challenging task for Skidmore will be to establish that “Stairway” is substantially similar to original, protectable expression contained in “Taurus.” In evaluating this point, the existence or absence of similar “prior art” may turn out to be an essential component of the defendant's case. The existence of relevant prior art can support a defendant's argument that it copied or derived inspiration from source materials that predate the plaintiff's work. “Taurus” may not be the first song to feature a minor-key chord progression containing descending half-step intervals; among other familiar tunes that employ this identical chord pattern is the chorus to the Beatles “Something” (although, it should be noted, that the release of “Something” post-dates Spirit's debut album by more than 18 months).

Led Zeppelin's attorneys will no doubt be mining back musical catalogs for other similar examples. In the event Led Zeppelin is unable to identify specific prior art works it copied or that served as inspiration, Skidmore may argue that unconscious copying occurred. A similar argument ensnared George Harrison in Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976), aff'd sub nom , ABKCO Music Inc. v. Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983), where George Harrison's song “My Sweet Lord” was famously found to infringe The Chiffons' hit “He's So Fine,” notwithstanding the court's belief that Harrison had not intended to copy.

The defendants will need to be careful not to rely too heavily on the argument that the songs' only similarities lie in that 12-beat chord sequence ' the fact that the two songs diverge is immaterial to the issue of liability if the court finds that the defendants copied original expression. “Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.” Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987). Skidmore will undoubtedly argue here that Led Zeppelin incorporated the “hook,” i.e., the central thematic element, from “Taurus” and used that element as the focal point for “Stairway to Heaven.”

'Celebration Day' If'Skidmore Prevails?

The Skidmore complaint claims this case is about more than a potential monetary payout, at one point stating: “Randy California deserves writing credit for 'Stairway to Heaven' and to take his place as an author of Rock's greatest song.” Elsewhere, the complaint demands: “Equitable relief should include an order that Defendants and the Copyright Office be made to include Randy Craig Wolfe (aka Randy California) as a writer of 'Stairway to Heaven.'” Of course, if California is acknowledged as a co-writer of the song ' which is the most he can expect given that his authorship claim only pertains to one section of “Stairway” ' his trust will be entitled to enjoy a share of future revenues generated by the song's exploitation.

As to additional remedies, Skidmore, if he prevails, will be limited to a recovery that captures profits earned in the three years immediately preceding suit. Although the peak years of Led Zeppelin's back catalog are behind it, the band recently reissued its first three albums and is in the processing of releasing all nine of its studio albums, which includes Led Zeppelin IV. But as to sales in the past three years, the defendants will be allowed to “chip away” at any profits-based monetary recovery by introducing evidence of permissible deductible costs and by arguing that profits should be “apportioned” to reflect the fact that sales of “Stairway” are attributable to factors other than the descending A-minor chord progression, such as the band's general popularity, the presence and strength of other songs on Led Zeppelin IV, and the presence of many other musical elements within “Stairway” that contribute to its overall sound.

In the final analysis, however, no matter how strong Led Zeppelin's apportionment argument is, assuming liability for infringement is established, the cases are clear that a prevailing plaintiff should be given the benefit of the doubt with respect to any uncertainty. See, e.g., Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988) (“Confronted with imprecision in the computation of expenses, a court should err on the side of guaranteeing the plaintiff a full recovery.”)

Finally, if the copyright registration for “Taurus” predates the time that Led Zeppelin's copying commenced ' and, according to the complaint, the copyright was registered on Feb. 5, 1968 ' then Skidmore will be able to recover attorneys' fees in the litigation. (Interestingly, the complaint alleges a 1968 registration date, but it fails to attach the original registration certificate, though it does attach a renewal certificate dating from 1996.)

Coda

As of press time for this article, Led Zeppelin and the other co-defendants in the case had not answered the complaint. Fans of rock music and observers of copyright law alike will no doubt be keeping a close eye on developments in this colorful case.

Christopher P. Bussert ([email protected]) and James A. Trigg ([email protected]) are Partner and Counsel, respectively, in the Intellectual Property Group at Kilpatrick Townsend & Stockton LLP. They specialize in copyright law and have litigated music copyright cases on behalf of both plaintiffs and defendants.