Kozinski Angle In 9th Circuit's Led Zeppelin Ruling

In Skidmore, the trustee for Wolfe's estate argued that Led Zeppelin and Spirit performed at the same music shows in the 1960s and '70s, and that Led Zeppelin guitarist Jimmy Page admitted owning a Spirit album containing the song "Taurus," which the estate says Led Zeppelin copied. The trustee's attorney, Pennsylvania-based Francis Malofiy, argued on appeal that Page's access to the song lowered the standard of proof, and that U.S. District Judge R. Gary Klausner should have instructed the jury on the inverse-ratio rule.

Judge McKeown said in her majority opinion that the absence of the instruction    didn't matter because the Ninth Circuit is doing away with the inverse-ratio rule. Confusion about when and how to apply the rule, criticism from other circuits, and the reality that services such as YouTube have made so much artistic work accessible have rendered the inverse-ratio rule unworkable, McKeown found.

The Recording Industry Association of America (RIAA) and a group of law professors led by Stanford's Mark Lemley were among the amici curiae that asked the court to throw out the rule. "Even the strongest evidence of access would not make up for an inadequate degree of similarity," UCLA law professor Eugene Volokh wrote for the RIAA.

Former Circuit Judge Kozinski resigned from the court in December 2017 after a string of female law clerks accused him of harassment. He didn't invent the inverse-ratio rule while at the Ninth Circuit, but his decision in Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002), was explicitly called out by Judge McKeown as pushing "past the rule's outer limits."

Metcalf involved accusations against Hollywood producer Steven Bochco that he copied the idea for his City of Angels television series from two independent writers after they provided him with a similar screenplay. Kozinski wrote in the Ninth Circuit's decision that because Bochco had access to the screenplay, the court could "easily infer that the many similarities between plaintiffs' scripts and defendants' works were the result of copying, not mere coincidence."

Kozinski invoked Metcalf and the inverse-ratio rule in his return to the court as an advocate in oral arguments last fall in Zindel v. Fox Searchlight Pictures Inc., 18- 56087. Kozinski argued that U.S. Central District of California Judge Percy Anderson "sidestepped" the inverse-ratio rule in ruling on the pleadings that movie The Shape of Water was not similar to his client's play Let Me Hear You Whisper.

"This Court's 'inverse-ratio' rule required the district court to exercise special caution in deciding substantial similarity on a 12(b)(6) motion," Kozinski wrote in legal briefs to the Ninth Circuit.

Judge McKeown said in her Skidmore opinion that Metcalf in particular has led to confusion about the inverse-ratio rule. Her opinion was joined in full by Chief Judge Sidney Thomas and Judges William Fletcher, Johnnie Rawlinson, Mary Murguia and Jacqueline Nguyen. Circuit Judges Paul Watford, Andrew Hurwitz and Bridget Bade joined all of the opinion except for portions having to do with instructions on the selection and arrangement of unprotected musical elements.

Circuit Judges Sandra Ikuta and Carlos Bea dissented on the ground that Central District of California Judge R. Gary Klausner should have instructed on selection and arrangement. "Without plaintiff's requested instruction, the jury was deprived of the opportunity to consider the plaintiff's central theory of the case," Judge Ikuta wrote.

Judge McKeown's ruling also noted that it wasn't until 1978 that composers could submit sound recordings to the Copyright Office as a deposit copy of a musical composition. Plaintiff's lawyer Malofiy had tried repeatedly to play "Taurus" for the jury, arguing it was the best evidence of the song Wolfe composed, but District Judge Klausner had refused.

Malofiy argued that restricting protection to the deposit copy disadvantages the many musicians who do not read music. But Circuit Judge McKeown wrote: "[Plaintiff] complains that restricting protection to the deposit copy disadvantages musicians who do not read music because it can be time consuming and expensive to make an accurate deposit copy. Apparently, that was not a problem here, as Wolfe's work was transcribed for the sheet music deposit. Digital transcription and other technological advances undercut this argument, not to mention that for decades now, sound recordings have been accepted as the deposit copy."

Davis Wright Tremaine partner Peter Anderson had the winning oral argument for Led Zeppelin and the music-publishing and record-companies co-defendants.

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Scott Graham focuses on intellectual property and the U.S. Court of Appeals for the Federal Circuit for ALM Media, which publishes Entertainment Law & Finance. He can be reached at [email protected].