Songwriters and Record Companies Seek New Standard for Copyright Infringement Claims

By Edvard Pettersson | September 24, 2019

Willie Nelson has famously said a country song is “three chords and the truth.”

It might not be so simple anymore.

A flood of lawsuits is threatening to upend that concept, making trivial similarities in songs the basis for a case of infringement — the unlawful reproduction of copyrighted work. That likeness in chords or melody in a top 10 song can glitter like gold to an artist whose work hasn’t reached that popularity.

So, classic rockers Led Zeppelin are being joined by a coalition of songwriters, music professors, record companies and even the federal government in an attempt to curtail the epidemic.

They were set to go before 11 judges of the federal appeals court in San Francisco Monday and urge them to overturn a ruling of a panel that ordered a retrial in an infringement lawsuit over Led Zeppelin’s iconic “Stairway to Heaven” — and lead guitarist Jimmy Page’s melodic opening.

A jury had found Led Zeppelin didn’t infringe the 1968 instrumental track of “Taurus,” by the California band Spirit. But in a ruling almost a year ago, the three-judge appeals panel said a new trial was needed because the jury wasn’t properly instructed that a combination of common elements in a composition can amount to infringement.

The unusual decision to hold a so-called en banc hearing by the 11 judges was prompted by an outcry from the music industry that followed the September 2018 ruling.

“The panel has drastically expanded the basis for finding copyright infringement in music cases,” a group of 123 songwriters, composers, musicians and producers said. “The end result of this ruling is that trivial and commonplace similarities between two songs may be considered to constitute the basis for a finding of infringement.”

A slew of copyright lawsuits already claim protection for elements of a song where there shouldn’t be any, said Bill Hochberg, an attorney with Greenberg Glusker in Los Angeles who specializes in music law.

A case in point is a trial Katy Perry lost this year, Hochberg said. Her 2013 hit “Dark Horse’s” simple sequence of six notes was found to have infringed a Christian rapper’s track.

“Copyright law gets corrupted and distorted by songwriters who look at the top 10 songs and think they hear their own song,” Hochberg said in a phone interview.

The holders of rights to Marvin Gaye’s 1973 song “Let’s Get It On” sued Ed Sheeran for more than $100 million, claiming he ripped off the melody, rhythms and harmonies among other things. The lawsuit in Manhattan federal court has been put on hold until the Led Zeppelin lawsuit is resolved.

A group of musicologists also chimed in on the Led Zeppelin lawsuit, claiming the ruling for a new trial would “foster unprecedented opportunism, unpredictability, and inequity” in bringing and resolving copyright infringement lawsuits.

“Disputes would devolve to battles between experts, cherry-picking commonplace unprotectable similarities between two works in an attempt to manipulate musically untrained juries into findings of substantial musical similarity,” the music professors said.

Even the U.S. Copyright Office weighed in on what the correct standard for copyright protection should be in the “Stairway to Heaven” case, when an infringement claim is based on the arrangement of otherwise unoriginal elements of a song.

It should take an almost identical copy of the arrangement for a claim of infringement to be successful, the Copyright Office said.

“Robust copyright protection for relatively simple combinations of standard musical elements would thwart, rather than enhance, creativity by making it more difficult for new composers to avoid copyright claims based on fundamental building blocks of music,” the office said.

But the California Society of Entertainment Lawyers, a non-profit group of attorneys who represent songwriters and other creative professionals, said even simple musical phrases deserve complete protection against misappropriation.

“In this case, the similarity is obvious to the untrained ear,” the group said in support of the trust of late Spirit guitarist Randy “California” Wolfe.

Very simple musical phrases can be evocative, memorable and original, the society said, citing the “Jaws” soundtrack and Queen and David Bowie’s “Under Pressure” as examples. They deserve broad copyright protection, the group said. The judges won’t consider the society’s argument, ruling late on Friday that it made the submission too late.

The jury in the original Led Zeppelin trial was played a bare-bones rendition of “Taurus” rather than the album version because when “Taurus” was written, copyright for songs only pertained to sheet music and not to recordings.

To compare the two versions

Here’s the “Taurus” track

Here’s “Stairway to Heaven”

That would mean most compositions before the enactment of the 1976 Copyright Act would only be partially protected against infringement, Wolfe’s trust said in arguing for a new trial and for the ability of creators of recordings before 1976 to be allowed to argue infringement.

“Virtually every folk, blues, jazz, gospel, rock and roll, and disco musical work composed before the 1976 Copyright Act were composed on instruments, not on sheet music,” the trust said.

The three-judge appeals panel had agreed that Wolfe’s trust couldn’t claim infringement of the recording, but said that the song nevertheless should’ve been played in court to establish that Page had access to it when he wrote “Stairway to Heaven.”

“That was very odd,” said Erin Ranahan, an attorney with Winston & Strawn in Los Angeles. “Why would the jury have needed any more evidence of access if they already agreed he had access. Once you hear the song, it’s hard to unhear it.”

The “Stairway to Heaven” case illustrates that there are a lot of unsettled issues in copyright law when it comes to music, said Jacqueline Charlesworth, a former general counsel with the Copyright Office who’s now with Alter, Kendrick & Baron.

Part of the problem is that music and musical concepts are difficult to fit in precise legal language, which can lead to very subjective infringement findings by juries, Charlesworth said in a phone interview.

“The Ninth Circuit recognized the significance of the ruling and the impact it had on the music industry,” Charlesworth said, referring to last year’s appellate decision. “The industry doesn’t want artists and songwriters to live in fear of infringement lawsuits.”

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