Monday, June 13, 2016

Led Zeppelin on Trial

Jimmy Page and Robert Plant are being sued because they are alleged to have copied someone's obscure track when putting together Stairway to Heaven. Never mind that the chord shape in question is unusually common, there's no indication that they actually "stole" someone's song. This is not a case where the lyrics or the way it was sung were copied--this is about a chord change similarity between the songs. 

A last minute move to keep Led Zeppelin's music expert from testifying could delay the trial that will determine if "Stairway to Heaven" copied a 1968 instrumental called "Taurus," which is set to begin Tuesday morning.

Attorneys seeking to prove Zeppelin infringed on songwriter Randy Wolfe's work claim when they deposed musicologist Lawrence Ferrara they discovered a massive conflict: he had been hired to evaluate the similarity once before.

"In 2013 he conducted a musicological analysis of the compositions of Taurus and Stairway to Heaven for Plaintiff’s publisher, Hollenbeck Music Co., a conflict that Dr. Ferrara and defense counsel knew about but purposefully failed to disclose," states a motion for sanctions filed Saturday. "Defense counsel misleadingly stated and implied that they had no knowledge about this situation, but in fact they orchestrated the entire scenario and have conspired with Plaintiff’s publisher (and fiduciary) since 2014 to undermine Plaintiff’s lawsuit, including by inducing the publisher to file false documentation with the Copyright Office in 2016 in an effort to undermine Plaintiff’s case."

Wolfe's heirs sued in 2014, seeking not only monetary damages but also that he be credited as a writer on the iconic song.


The last round of exclusions weighed heavily in Zeppelin's favor. In April Klausner ruled that the jury won't hear any testimony about the wealth of Jimmy Page and Robert Plant, how bandmembers used drugs and alcohol and it won't actually hear the sound recordings at issue. The only music to the juror's ears will be recreations based on the original sheet music that was filed with the U.S. Copyright Office.

Here are the relevant details:

The court was convinced that the famed British rock band would have had the chance to listen to Spirit’s song (it seems the two bands toured together in America in the late 1960s) and that the two tunes could have relevant similarities in the first two minutes, arguably the most important and recognizable segments of any piece.

Access and substantial similarity between the works are the requirements for a successful copyright case.

The main defense raised by the British band was that the descending chromatic four-chord progression in “Taurus” is commonplace and not original—and so not protectable by copyright. The court found this unconvincing.

In copyright infringement proceedings, this kind of defense (based on the so-called scènes à faire doctrine) is frequent. While it is true that that chromatic progression is a common convention which abounds in music—said the judge—the several similarities between the two songs here transcend this main structure.

It is therefore now for the jury in the upcoming trial to decide whether, having in mind the ordinary and reasonable listener, “Stairway to Heaven” has taken the “Taurus” “concept” and “feel.” In copyright jargon, this is known as the intrinsic test.

Here's the thing, though--Stairway to Heaven is a song that is roughly divided in two parts, and the second part is entirely free of any claim of plagiarism. The lyrics are completely original, unless you accept that they are inspired by literary themes and ideas that go back hundreds of years. And there's no indication that the recorder piece is copied either. How do they think they're going to win when most of the composition is entirely original and when the chord progression found at the beginning is one that is commonly used in other compositions?

When you have a lot of money, get ready to be sued a lot. That's the lesson here.

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