v30#5 Cases of Note — Copyright

by | Dec 27, 2018 | 0 comments

Rock Legends and Substantial Similarity

Column Editor:  Bruce Strauch  (The Citadel, Emeritus)  


Apologies in advance for not knowing squat about music.  But this is much in the news and seems topical.

Randy Wolfe was a California rocker in the glorious ’60s and was actually given the nickname “Randy California” by none other than Jimi Hendrix.

How cool is that?

Much of Randy’s work was not terribly commercial, but he was revered among guitarists, able to play like Hendrix, Clarence White, Roger McGuinn, or Wes Montgomery, often all within the same song.

He wrote the song “Taurus” for his first album Spirit released in 1967 by Hollenbeck Music which copyrighted it and listed him as the author.

’67 was the Summer of Love for those of you not old enough to remember.  Hippies gathered in Haight-Ashbury; Tim Leary advised “Turn on, tune in, drop out.”  The “Human Be-In” at Golden Gate Park inspired the musical Hair.

The Monterey Pop Festival introduced us to The Who, Grateful Dead, Big Brother and the Holding Company, Jefferson Airplane, Janis Joplin.

The media went crazy and defined the ’60s as counterculture and sex, drugs, and rock-and-roll.  In fact, the first half of the decade had been exactly like the ’50s. And American rubes such as myself only saw the second half through the pages of Life magazine.

Led Zeppelin was formed in 1968 by Jimmy Page, Robert Plant, John Paul Jones, and John Bonham.  Page (songwriter) and Plant (lyrics) of course are legendary in rock history.

The band, perhaps the most successful and influential in history after the Beatles, broke up in 1980 when drummer John Bonham drank a major quantity of vodka for breakfast on top of his antidepressant meds and pegged out.

For their fleshly exploits see Stephen Davis, Hammer of the Gods (Wm. Morrow & Co. 1985).  Mind you, the three surviving members hate the book, and the author has the industry monicker of “Stephen Salacious.”  But that sounds like a recommendation.

Led Zeppelin and Wolfe moved in the same circles.  Zep would cover another Wolfe song “Fresh Garbage.”  They both performed at concerts together.

The Zep gang heard “Taurus” repeatedly.  Jimmy Page owned a copy of the album Spirit.

1971 brought us “Led Zeppelin IV.”  And on it was — you guessed it — “Stairway to Heaven.”

In 1997, Randy “California” Wolfe drowned in undertow off the coast of Molokai.  All his intellectual property was put in a trust by his mother.  And percolating along was the question of whether Zep had ripped off “Taurus.”

The Supreme Court decided laches is not a defense for an ongoing copyright violation in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967-68 (2014).

Laches is a defense of dorking around for too long before bringing your suit.  You can see the reasoning of not a defense when “Stairway to Heaven” is beloved of drug users and still being played ad nauseam.

Thus, the trust sued for copyright infringement in 2015.

Trust claims the opening notes of “Stairway” are substantially similar to those in “Taurus.”

Jimmy Page the famous Zep music composer admitted he owned the Spirit album but had not heard it before he wrote “Stairway.”

Which given the concerts, seems untrue.

The jury listened to both songs and determined that Zep had access to “Taurus” but the songs were not substantially similar.

And it went to appeal.

The Ninth Circuit

The holding of this case is 19-pages long which is an exhausting read of legal gobble-de-goop for me.  But paring it down drastically, there’s really only one issue of interest — a particular charge to the jury.

Substantial similarity is required to prove unlawful appropriation.  The extrinsic test breaks the works down into constituent elements and compares them.  Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).

No, the jurors don’t have to have degrees in Musicology.  Expert witnesses are used.

The intrinsic test is “whether the ordinary reasonable person would find the total concept and feel for the works to be substantially similar.”  Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000).  This is a subjective comparison.

And juries are good at being subjective.

For victory, the Trust needs a “yea” in both tests.  One “nay” knocks them out. The jury found no substantial similarity under the extrinsic test so they didn’t have to go on to intrinsic.

Notes of a scale are not protected by copyright, but you can combine unprotectable elements to be protectable.  Swirsky, 376 F.3d at 848.  The notes must be combined with enough originality to make an original work of authorship.  Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).

Does that seem like something we need to be told?

At any rate, the district court failed to tell the jury that, but the 9th Circuit saw it as pretty harmless.

Because common sense?

More importantly, the district court told the jury that copyright does not protect “chromatic scales, arpeggios or short sequences of three notes.”

Little bitty bits are not original.

Let’s remember that the bar for originality is pretty gosh darn low.  It’s minimal creativity.  See: Feist Publ’ns v. Rural Telephone Serv. Co., Inc.  499 U.S. 340, 348 (1991).

If you recall, that one is about arrangement of a telephone book.  Which seems like a quaint artifact today, but was an issue a couple of decades ago.

And the 9th Circuit in Swirsky found that chromatic scales were protectable.

Chromatic scale is a scale of twelve pitches, each a semitone above or below the adjacent one.  And that’s completely over my head.

In an arpeggio, you take a chord and play it one note at a time.  Okay, I get that.

The error was not harmless because the Trust’s expert witness testified that Zep had copied an original chromatic scale.  He said “Taurus” had public domain elements that were modified in an original way.  And this would go to extrinsic substantial similarity.

An original element of a song need not be new; just created independently in a creative way.  Swirsky, 376 F.3d at 849.

The jury charge was dismissive of his testimony and contrary to a 9th Circuit holding.

So this got sent back for a new trial.

Our son, who was a young teen in the glory days of Led Zeppelin, listened to both intros and said he couldn’t hear any similarity.  So trust would lose on the intrinsic test with him on the jury.

He also had an interesting take on laches.  He reasoned that Randy California was alive from ’71 to ’97 and heard “Stairway” numerous times.  How could anyone not hear it? Over. And. Over.

He was pals with Led Zep, and as a musician’s musician, knew how music is put together.

If he had no objection, why should his heirs be able to bring suit?  


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