April 18, 2016

By Oliver Herzfeld

A lawsuit was just commenced by the band Spirit against Led Zeppelin claiming the iconic guitar arpeggio opening of “Stairway to Heaven” infringes Spirit’s 1968 instrumental track “Taurus.” The case presents a number of complex copyright law issues that I will try to clarify.

Statute of Limitations

Led Zeppelin first released “Stairway to Heaven” approximately 43 years ago, so the first question is, what is the statute of limitations for copyright infringement? Under The U.S. Copyright Act, civil infringement actions must be “commenced within three years after the claim accrued.” The three year rule would effectively bar any recovery for alleged infringement during the first approximately 40 years of the song’s release and limit any potential recovery to new formats/releases of the recording over the last three years, as well as any future new formats/releases of the recording. This could still be very meaningful because published estimates peg the song’s historical earnings (including both sales and royalties) at over $562 million (i.e., averaging over $13 million per year). And part of Spirit’s lawsuit seeks an injunction to prohibit a scheduled reissue of Led Zeppelin’s albums that have been completely remastered by guitarist and producer Jimmy Page.

Elements Of Copyright Infringement

Many listeners are convinced that Led Zeppelin copied the “Stairway to Heaven” opening directly from Spirit’s “Taurus.” Others believe the two works share commonplace musical elements and “Taurus” features a chord progression that is not protectable by copyright law. So the next question is, what are the elements of a successful claim of copyright infringement? To determine infringement, courts have relied on the following two-prong test:

1. Copying of a prior work; and

2. A substantially similarity to the prior work sufficient to constitute improper appropriation.

I will consider each element in turn.

Copying

Copying can be proven by either direct evidence (e.g., a party’s admission) or circumstantial evidence. Many courts allow copying to be circumstantially proven with a two-part analysis based on evidence of access and similarity. The amount of access and similarity required to determine whether copying took place are inversely proportional. In other words, the more access a party had to a prior work, the less similarity must be shown to prove copying. Similarly, the more similarities that exist, the less access must be shown to prove copying. In this case, there is ample evidence of access since it is well-documented that the two groups performed together the day after Christmas 1968 and four additional times in 1969, all at concerts and festivals where Spirit played “Taurus.” Where there is evidence of both access and similarities, the trier of fact must determine whether the similarities are suf?cient to prove improper appropriation in the eyes of the law.

Substantial Similarity

Proof of copying is necessary but not sufficient to determine copyright infringement. There must also be a substantially similarity to the prior work sufficient to constitute improper appropriation, where “substantial” means substantial in degree as measured either qualitatively or quantitatively and “similarity” means similar in the ears of the ordinary member of the intended audience.  In the case at hand, should it reach the trial court, both parties will presumably present expert witnesses to analyze the respective recordings and testify how they are similar or dissimilar. However, the trier of fact will ultimately have to base its decision, not on the expert testimony, but on whether the works are “substantially similar” in the ears of ordinary members of the listening audience.

Affirmative Defenses

If Spirit is able to meet the legal standard of proof of copyright infringement, Led Zeppelin would likely raise one or more affirmative defenses.   For example, Led Zeppelin could claim the chord progression in “Taurus” is not original or not protectable under copyright law. Similarly, it could try to prove that the opening of “Stairway to Heaven” was independently developed by Led Zeppelin without reference to “Taurus.” Any borrowing from “Taurus” could be deemed a “de minimis use” that is so minor as to be disregarded in the eyes of the law. However, a copy would usually be considered de minimis only if it is so meager and fragmentary that the average listener would not recognize its original source.

Some suggest that short portions of compositions incorporated into recordings should be covered under the “fair use” limitations to copyright law to the extent they are insubstantial and their use is unlikely to adversely affect sales of the originals. However, copyright owners are entitled, not just to sales of their originals, but to license their works for remuneration. So I would argue that such a defense would amount to an improper appropriation of owners’ license rights without compensation.

A variation on the fair use defense would be to consider Led Zeppelin’s introduction to “Stairway to Heaven” a “transformative use,” since every original work in some way borrows and builds upon what has come before.  A potential problem with such a defense is that some courts hold that a use qualifies as transformative only if it comments on, criticizes or parodies the original, which is probably not applicable here. Nonetheless, in a recent decision, the Second Circuit rejected any requirement that to be entitled to a copyright “fair use” or “transformative use” defense, an allegedly infringing work must comment on, or critically refer back to, the original copyrighted work.

Application

As discussed above, Led Zeppelin had access to “Taurus” before “Stairway to Heaven” was composed.  The question is, are the similarities between the two works sufficient to prove “copying” in the eyes of the law and “substantial similarity” in the ears of ordinary members of the listening audience? If so, Led Zeppelin will be held strictly liable for copyright infringement, even if its copying was completely unintentional and accomplished subconsciously. If not, the court will determine that there are no similarities between the compositions other than commonplace musical elements.

Likely Conclusion

To avoid having to expend time, money and resources engaging in a protracted legal dispute, as well as exposure to the possibility of liability for monetary damages and/or injunctive relief as part of an adverse ruling, the most likely conclusion to this dispute will be a confidential settlement agreement involving a payment or series of payments to Spirit, as well as granting writing credit for “Stairway to Heaven” to Spirit guitarist Randy California. That is precisely how Led Zeppelin resolved prior claims of copyright infringement brought by third party artists regarding other Led Zeppelin songs including “Whole Lotta Love,” “Babe I’m Gonna Leave You,” “The Lemon Song,” and “Dazed and Confused.”

Oliver Herzfeld is the Chief Legal Officer at Beanstalk, a leading global brand extension agency and part of the Diversified Agency Services division of Omnicom Group.