Sparks From En Banc Arguments In Song Suit Against Led Zeppelin

Now the en banc court is taking a second appellate look.

Ninth Circuit Judge Sandra Ikuta didn't seem moved. "What do we do with ABKCO Music [Inc.] v. LaVere [217 F.3d 684 (9th Cir. 2000)]," which concluded copyrights cover sheet music, not recordings, until the law changed in 1976.

Malofiy argued that playing the "Taurus" recording for jurors would at least help flesh out the composition that's embodied in the sheet music. If allowed to do so on a retrial, they'll recognize the similarities and the estate will win, he told the court.

"And you'll lose the case" if they don't, Ninth Circuit Judge Andrew Hurwitz said. "A hundred times out of a hundred."

While there seemed to be broad agreement among the appellate judges that the "Taurus" sheet music defines the copyrighted work, at least until the Copyright Act of 1976 was enacted, the questioning suggested disagreement on whether the selection and arrangement of a limited number of notes can be copyrighted.

Malofiy argued that if an original arrangement of otherwise unprotectable elements can't be copyrighted, songs such as Lynyrd Skynyrd's "Free Bird" wouldn't enjoy copyright protection.

The music industry and the U.S. government has argued that if the estate is entitled to such a jury instruction, the Ninth Circuit should make clear that the selection and arrangement of otherwise unprotectable elements should be afforded only "thin" copyright protection.

Davis Wright Tremaine partner Peter Anderson argued for Led Zeppelin that Malofiy had not argued selection and arrangement at trial. But Circuit Judge Ikuta suggested that Malofiy simply used the word "combination" to mean the same thing and suggested he was entitled to an instruction. "Where did the court tell the jury that otherwise unprotected elements in combination could be protected?" she asked.

"If you're going to go selection and arrangement, then the arrangement has to be original," the elements have to be numerous, and the copying of it "virtually identical," Anderson said.

Department of Justice attorney Daniel Tenny, arguing as amicus curiae, echoed that position. But Judge Ikuta noted that the Ninth Circuit has so far only adopted the "thin protection" framework for cases involving computers and other functional works. "It seems to me music was treated more like books," where protection is broader, she told Tenny. "We would be breaking new ground to apply this thin protection concept to musical compositions, is that not right?"

Tenny said the government was merely advocating general principles of copyright. "It has not been context-specific in the past," he said.

When Malofiy returned for rebuttal, Circuit Judge Jacqueline Nguyen asked if he agreed with the government that the fewer the unprotectable elements in an original combination, the less protection they should get. (Judge Nguyen dissented in the Ninth Circuit's 2018 "Blurred Lines" case, William v. Gaye, 895 F.3d 1106 (9th Cir. 2018), saying the court was making it too easy to allege infringement of common musical phrases.)

"You can have two notes and they're protectable," Malofiy said, humming the theme from the movie Jaws — "Da-na. Da-na da-na da-na" — as an example. "Everyone recognizes that Jaws is as much about the music as it is about the movie."

"Is it the two notes that's protected, or the two notes repeated," Judge Nguyen asked.

"Jaws may not be your best example," Circuit Judge M. Margaret McKeown said.

McKeown, Chief Judge Sidney Thomas and Circuit Judge Susan Graber all seemed to suggest that the appeals court could sidestep the selection-and-arrangement issue by holding that Malofiy had waived it. "You didn't really argue a selection-and-arrangement theory at trial, did you?" Thomas asked Malofiy.

"Absolutely we did your honor, and to say otherwise is false and misleading to this court," Malofiy responded.

McKeown said that Malofiy had objected to other instructions, but not to the failure to give selection and arrangement. "It seemed to me your focus was on the original parts of this, and not on some combination," she said.

Some of the wrangling on appeal has been about District Judge Klausner's failure to instruct jurors on the "inverse ratio" rule, which holds that the greater the access an accused infringer had to a copyrighted work, the lower the standard of proof necessary for copying. In ordering a retrial, the three-judge appellate panel had said an inverse-ratio instruction "may be appropriate" on remand.

The Recording Industry Association of America and a group of intellectual property professors asked the Ninth Circuit to repudiate the instruction, as other circuits have. But the issue didn't get a mention until 43 minutes into the hour-long en banc oral arguments, when Chief Judge Thomas perfunctorily asked Led Zeppelin counsel Anderson to "argue for a minute on the continued vitality" of the rule. Anderson argued that access should be a non-issue. Zeppelin guitarist Jimmy Page had participated in hundreds of recording sessions in the 1960s. "Jimmy Page did not need to hear 'Taurus' to know about a descending chromatic scale," Anderson said. There were no follow-up questions on inverse ratio.

Following the en banc oral arguments, Malofiy wrote the court to dispute this statement Anderson made during argument: "I'd first like to respond to some of things counsel said. At no point in this case — in discovery, at trial, or in the original briefing — did Plaintiff ever take the position that the deposit copy [issue] was in error." Malofiy claimed Anderson's statement was "knowingly false."

Anderson in turn wrote the en banc court that the time for Malofiy to make that claim against him was in rebuttal during oral arguments. Anderson explained he had been responding to Malofiy's implicit claim during the arguments that Wolfe's music label had caused some sort of error in the deposit copy. Malofiy's motion is "just another instance of plaintiff's litigation misconduct noted by the District Court," Anderson wrote the appeals court. "Plaintiff's sanctions motion is itself sanctionable."

But the Ninth Circuit declined to sanction either lawyer.

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Scott Graham covers intellectual property and the U.S. Court of Appeals for the Federal Circuit for ALM. He can be reached at [email protected].