Michael Skidmore v. Led Zeppelin et al., Case No. 20-142 (S.Ct. 2020).

By on September 3, 2020
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Author: Richard Sybert

The greatest rock band in recorded history is back in the news. And who, hearing their music blast through the dormitory corridors of UC-Berkeley in the fall of 1969, could have predicted that a half-century later, Led Zeppelin would be at the center of a raging copyright law controversy on its way to the United States Supreme Court? Will Jimmy Page have to wear a tie?

Fresh from its sacrilege at being turned into elevator music, the band’s “Stairway to Heaven”—perhaps the closest heavy metal could ever get to a love ballad—is the subject of court rulings and a petition for certiorari filed August 11 over claims that it plagiarized the opening bars and intro from a 1967 song called “Taurus” by the band Spirit.

A Los Angeles jury cleared Zeppelin of this infringement charge in 2016. A Ninth Circuit panel reversed the verdict, but it was reinstated by an en banc panel whose decision has sent shock waves roiling through the musical copyright world.

Notably, the Court of Appeal ruled that music copyright—and, therefore, analysis of infringement allegations—is limited to the deposit copy of the music on file at the Copyright Office. (All copyright registration applications must include a “deposit” at the Copyright Office of the work, or a representation of it, being copyrighted.) In the case of music copyrights, this tends to be “bare-bones,” often simple sheet music which is a far cry from the final version(s) actually produced and recorded. Put another way, the Courts will not compare the accused music against derivative versions of the copyright.

Lawyers for the estate of Spirit’s front man, which brought the suit, claimed in their cert petition to the Supreme Court that this ruling would have dire consequences for the music industry and effectively divest writers and composers (or their publishers) of copyright protection of the fruits of their labors. No doubt this is overstated, but also no doubt if this ruling stands it will represent a major change in music copyright law.

It is rare, of course, that cert petitions are accepted, which requires the votes of 4 of the 9 justices; of the 7,000 to 8,000 petitions filed each term, only about 80 are granted. Given their age, however, maybe some of the Supremes are Zeppelin fans. All we know is that right now there doesn’t seem to be a whole lotta love in the music world.

Filed under Copyright Infringement

On the Metaphysics of Intellectual Property Law

By on March 7, 2014

How many angels can dance on the head of a pin?  What is the meaning of life?  When might Godot finally show up?  Questions like this can elicit many answers, and they won’t be wrong.

Is intellectual property law the same way?  A recent 2-1 decision by the quixotic Ninth U.S. Circuit Court of Appeals so indicates.  In Garcia v. Google, Inc., a Feb. 26 decision, the appeals court reversed the district court’s denial of a preliminary injunction in a copyright case that would have ordered the removal from YouTube of an anti-Muslim film that included a performance by the plaintiff actress.  Chief Judge Alex Kozinski, writing for the majority, found that the plaintiff had a copyright in her own artistic performance, and that the implied license she would normally have been deemed to have granted to the filmmaker was exceeded when he used it for a polemical movie entirely unlike the “action” film that had been described to her.  Judge Randy Smith dissented, applying a strict legal analysis of the appropriate standard of review.

It seems pretty clear on reading these opinions that this was a case, if not of hard facts making bad law, at least of results-oriented reasoning by the majority, a fact not lost on the dissent.  The defendant filmmaker had lied to the plaintiff and misused her performance, and the result had been that she and everyone else associated with the film had been the subject of an Islamic fatwa and received death threats, and the plaintiff had been forced to move and take other security precautions.  It plainly strained Judge Kozinski’s view of common sense that the plaintiff could not be protected.  And although it would be completely unworkable if every actor and actress in a movie owned a copyright that could be used to hold up publication, the majority was careful to say that normally there would be at least an implied license to use the performance in the finished work.  So all of this may be a distinction without a difference.

Nevertheless it serves as a useful reminder to IP practitioners to never lose sight of the equities.  Judges no less than juries want to feel that they have done the right and moral thing.  How many of us have argued for a defendant that there was no proof of speculative damages, yet have the trier of fact come back with a damages award because they did not like the defendant’s conduct?  At the end of the day — and maybe at the beginning — this is a people business.

Filed under Copyright