Usher Song Credit Suit Outcome; Suit Over Led Zeppelin Song Gets Retrial 

Marino was represented by Media, PA, attorney Francis Malofiy, who has pursued the case against Led Zeppelin over the song “Stairway to Heaven.” “The big thing in all these music cases, and I represent the creatives, is giving credit where credit is due, and that's really what we fought for the hardest,” Malofiy says. “We're happy Marino got his day in court after seven years of litigation.”

Margolis Edelstein attorney Jason C. Berger represented defendant Dante Barton and Barton's company Destro Music Productions. Berger did not return multiple requests for comment.

The dispute stemmed from the song “Bad Girl” that Usher released in his 2004 album “Confessions,” which was one of the best-selling albums of the decade, according to Billboard.

According to Marino's pretrial memo, around 2001, Marino co-wrote a song called “Club Girl” with defendants Dante Barton and William Guice. The memo said the three had a contract to split writing credit and compensation three ways on any songs. The memo also said Marino was the originator of the song, as he came up with the guitar hook, the structure, tempo, chord progression and basic melody. The memo states Barton added a beat and Guice added the lyrics.

A man who worked for Usher later reached out about having the R&B star record and release the song, which was eventually released as “Club Girl,” the memo claimed, The parties agreed, according to Marino, with the understanding they would each get their share of credit for the song.

However, Marino claimed, Guice, Barton and Destro Music Productions signed “secret” contracts cutting Marino out of any credit or compensation for the song. The two defendants, the memo said, made at least $700,000 on the song, and Marino was entitled to at least one-third.

Marino claimed that, after the deals were entered into, Barton misled Marino about his share of the money. The memo also said that Barton at one point “explicitly acknowledged that Marino was owed money” and that Marino had “co-authored, co-produced and co-owns” the song.

In 2009, after the defendants allegedly lost contact with the plaintiffs, Marino realized he had been tricked, the memo said. He sued 20 defendants, including Usher, in federal court, alleging copyright infringement, fraud and breach of contract, accounting and constructive trust in 2011. That suit, however, was dismissed against all but Barton and Guice. Marino v. Usher, 11-6811. Marino brought the state court action against Barton and Guice in 2016.

In their pretrial memo, Barton and Destro Music Productions contended that Marino's claims were barred by the federal court ruling and that the other claims failed as a matter of law. The memo also noted that the defendants did not have any insurance policies that would cover an award in the case. Although the defendants' memo did not address Marino's claim that Barton had misled him, in the federal court litigation, Barton contended that the defendants had both express and implied licenses to copy the song, and because the song's sound recording was never registered, Marino could not find success on an infringement claim.

“We intend to collect every penny for Mr. Marino from those who wronged him,” Malofiy said. “The judgment has tremendous value and it's our intention to leverage that.”

Led Zeppelin Case

Meanwhile, the copyright case in which Malofiy serves as plaintiff's counsel against Led Zeppelin will return for an encore after the U.S. Court of Appeals for the Ninth Circuit called for a retrial, ruling that the district court “prejudicially erred” in its instruction to the jury. Skidmore v. Led Zeppelin, 16-56057.

According to the lawsuit, Led Zeppelin's 1971 anthem “Stairway to Heaven” was a little too similar to “Taurus,” a 1967 instrumental by American rock band Spirit. Lawyer Michael Skidmore filed the suit on behalf of Spirit's front man Randy Craig Wolfe, also known as Randy California, who died in 1997.

At trial, Led Zeppelin's Robert Plant and Jimmy Page denied ripping off Spirit's song, testifying that their song was original and claiming they didn't recall meeting the band or hearing “Taurus.” In June 2016, a federal court jury in Los Angeles sided with Led Zeppelin in part, finding that the band members had access to “Taurus,” owned by Skidmore, but that the two songs didn't pass the “extrinsic test” of similarity.

But according to the Ninth Circuit opinion, the lower court did not properly explain “originality” to the jury and failed to explain how combinations of “unprotectable musical elements,” such as note and scale, can sometimes qualify for copyright protection. The appellate panel also ruled that the district court erred in preventing the jury from hearing a recording of “Taurus” for the purpose of establishing the defendants' access to the song.

“We weren't given a fair fight at the trial court level because there were evidentiary rulings that made it almost impossible to allow the jury to really compare what was at issue,” said Skidmore attorney Malofiy.

According to Malofiy, once jury members hear the recording in a retrial, “they'll realize that [Page and Plant] had access to the song and were inspired by the song, and it resulted in the part of the first two minutes of 'Stairway to Heaven,' which we alleged was copied.”

But Malofiy also argued the district court erred in determining that the Copyright Office deposit copy of “Taurus” encompassed the copyright protectable parameters of that song. However, in an issue of first impression for the Ninth Circuit, the appeals court decided: “Given that copyright protection under the 1909 Act did not attach until either publication or registration, we conclude that for [then] unpublished [“Taurus”] the deposit copy defines the scope of the copyright” of the musical composition.

Peter J. Anderson, of Santa Monica, CA, and Helene M. Freeman, of Phillips Nizer in New York City, represent Led Zeppelin.

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Max Mitchell is a reporter for The Legal Intelligencer, the Philadelphia-based ALM sibling publication of Entertainment Law & Finance. He can be contacted at [email protected]. Scott Graham reports on intellectual property and on the U.S. Court of Appeals for the Federal Circuit for ALM.