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Ninth Circuit, en banc, Finds for Led Zeppelin After "A Long Climb Up The Stairway to Heaven"

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On March 9, 2020, the Ninth Circuit Court of Appeals issued an en banc opinion in Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, No. 16-56057 (9th Cir. Mar. 9, 2020), affirming a finding that Led Zeppelin’s famous song, Stairway to Heaven, released more than 40 years ago, does not infringe the instrumental song Taurus, written by Randy Wolfe and performed by the band Spirit.  The decision included a finding that the scope of copyright in an unpublished musical work registered under the 1909 Copyright Act is limited to the deposit copy, affirmed the jury instructions of the District Court for the Central District of California, and perhaps most significantly, abrogated the “inverse ratio rule” in the Ninth Circuit.

To prove copyright infringement, a plaintiff must demonstrate two elements – (1) ownership of a valid copyright, and (2) copying of protected aspects of a work, the latter of which includes the critical question of substantial similarity. Skidmore, Slip Op. at 22.  The central question in the Central District of California case was whether the first several notes of Stairway to Heaven were substantially similar to an eight-measure section at the beginning of the song Taurus; the jury ultimately found no infringement. Slip Op. at 10.  A key consideration in this analysis was the scope of Skidmore’s copyright and what evidence Skidmore could use to prove substantial similarity between Taurus and Stairway to Heaven–the copyright deposit copy or sound recordings of the musical composition.  The Ninth Circuit affirmed the District Court’s determination that because Taurus was an unpublished musical composition that registered in 1967, under the Copyright Act of 1909 (which did not cover sound recordings), the copyright deposit copy for Taurus, one page of sheet music, limited the scope of the copyright, and concluded that the District Court did not err in declining Skidmore’s request to play sound recordings of Taurus at trial on the issue of substantial similarity. Slip Op. at 15-22The Ninth Circuit further held that the District Court’s refusal of Skidmore’s request to play the sound recordings during testimony on the issue of access was proper, as the recordings contained performance elements not protected by the deposit copy and as Zeppelin had conceded access at trial. Slip Op. at 24.  Notably, although sound recordings of Taurus were not admissible, the jury heard live and recorded audio versions of guitar performances of the respective songs during trial and deliberation, and still declined to find substantial similarity. Slip Op. at 50.

The Ninth Circuit Court also considered the District Court’s failure to include the “inverse ratio rule” in its jury instructions.  Beyond its conclusion that the District Court did not err by failing to include the rule, the Ninth Circuit expressly abrogated the use of the inverse ratio rule in a copyright infringement analysis, overruling prior Ninth Circuit case law. Slip Op. at 26.  The Ninth Circuit first articulated the “inverse ratio rule” in 1977, which provides that a high degree of access to a copyrighted work lowers the bar for substantial similarity, i.e., the more access one has to a work, the less compelling the similarities need to be to find copying. Slip Op. at 27-28.  In analyzing the rule, the Ninth Circuit noted that the Second, Fifth, Seventh, and Eleventh Circuits have rejected the rule, while the Sixth Circuit has embraced the rule, and the Ninth Circuit has itself vacillated between accepting and rejecting the rule, with internally inconsistent and flawed applications. Slip Op. at 26-27.  In conclusively rejecting the inverse ratio rule, the Ninth Circuit Court suggested that the rule may be slightly outdated in an increasingly digitally connected world where “access” is almost inevitable, and highlighted that the rule may unfairly benefit works which are highly popular, as a copyright plaintiff would be required to make a comparatively less significant showing of substantial similarity to state or recover on an infringement claim. Slip Op. at 31-32. 

In addition to the Ninth Circuit’s findings on the inverse ratio rule, the Court found no error in the District Court’s jury instructions, or lack thereof, on originality and selection and arrangement. Slip Op. at 38-39, 48-49.  The Ninth Circuit also affirmed that the trial time limit was fair, that the District Court properly responded to a jury question, that expert testimony was properly admitted, and that the District Court properly declined an award of attorneys’ fees. Slip Op. at 49-53. 

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