Sparks From En Banc Arguments In Song Suit Against Led Zeppelin

Malofiy argued that the sheet music was transcribed by a third party and Led Zeppelin didn't read it. Rather, Zeppelin guitarist Jimmy Page had access to "Taurus" from watching Wolfe's shows in the psychedelic rock group Spirit and from owning five of that band's records. That created "an Orwellian world" at trial where the parties were "comparing something that Randy didn't write and that Jimmy Page didn't read," Malofiy said. The result was a verdict that "promotes form over substance," Malofiy insisted. (The en banc court turned down attorney Malofiy's request to play portions of "Taurus" and "Stairway to Heaven" on his cellphone for the judges during the oral arguments.)

In 2016, jurors found no substantial similarity between the two songs. Central District of California federal Judge R. Gary Klausner had instructed jurors that "common musical elements, such as descending chromatic scales [which appear in both 'Taurus' and "Stairway to Heaven'], arpeggios or short sequences of three notes" are not protected by copyright. Last year, a Ninth Circuit three-judge panel threw out the trial verdict and ordered a new trial. The jurors should have been told that even a limited number of notes can be copyrighted if selected and arranged in an original way, the panel held. But the panel backed District Judge Klausner's decision not to play a recording of "Taurus" for the jury.