By: Christopher McHattie, Esq. and Sean Sanders

The verdict is in and Led Zeppelin is off the hook following a highly publicized copyright infringement lawsuit brought by the estate of Spirit’s Randy Wolfe (a.k.a., Randy California). Following a two-year legal battle, a Los Angeles jury found last week that Led Zeppelin’s “Stairway to Heaven” did not infringe on Spirit’s 1968 song “Taurus.”

We have three “take aways:” (1) “it’s what’s deposited with the copyright registration stupid;” (2) what’s past is prologue; and (3) sanity and the rule of law returns to copyright.

However, what was most surprising to us, although apparently known by many, was this: listen up; it is fascinating.

The complaint (creatively written in familiar Led Zeppelin album fonts) alleged that Zeppelin “had access to ‘Taurus’ and copied protected expression in ‘Taurus’ to create ‘Stairway to Heaven’ and is liable for direct copyright infringement” – the requisite pillars of copyright infringement. The complaint also alleged that Zeppelin was liable for “Falsification of Rock N’ Roll History.” because “Randy Wolfe wrote the iconic notes, melody, chord progression, structure, tempo, instrumentation, and feel of significant portions of ‘Stairway to Heaven,’ which are instantly recognizable to any person remotely familiar with rock music . . . [and] credits for ‘Stairway to Heaven’ incorrectly do not list Randy California as a writer of the song.”

During the trial, thousands took to the internet to debate whether or not Led Zeppelin “plagiarized” Spirit’s song. The word “plagiarism,” however, is not part of the legal lexicon. Rather, it is an academic word used to describe the act of using an author’s work or ideas as one’s own without credit. Plagiarism is not illegal per se. The law prohibits copyright infringement, plagiarism’s legal cousin. As we described in our June 13 post, “How ‘Small’ Can Copyright Go?”, a successful copyright infringement claim requires 1) access to the copyrighted work, and 2) substantial similarity between the protected part and the alleged infringing work.

In the Stairway case, Spirit’s lawyer claimed that the “not yet immortal rock legends” had access to ‘Taurus’ when they opened for Spirit at a concert in 1968 and several times thereafter in 1969. He also claimed that the notes and chords used to make the opening riffs of each song were “substantially similar.” Zeppelin’s lawyer argued that the similar notes were not protectable, but instead part of a collection of riffs used for centuries. For example, listen to these pieces from Giovanni Battista Granata (1659) and Bach (1712).

At the end of the day, plaintiff struggled with being restricted to what had actually been registered-the sheet music actually filed with the copyright office as the deposit of the copyrighted work. When the sheet music was played and compared to Stairway to Heaven, what appeared like straight forward copying quickly became something much less sinister.

Next, Plaintiff remarkably struggled with “access;” i.e., actually proving that the defendants had actual access. We believe that access, which is almost never capable of exacting proof, is proven if a preponderance of the evidence suggests that the defendant had access to the copyrighted work – a standard which was met here. Despite Plaintiff’s album being in Defendant’s possession, Plaintiff struggled with this issue; we suggest confusing actually having heard (not the standard) with having had access to it (the standard).

Finally, and as noted in prior posts, a copyright Plaintiff can only claim exclusive rights in what is original to the copyright registrant; i.e., subtract from the copyrighted work what the author itself copied from preexisting works. Here, after subtracting Giovanni and Bach et als., and restricting the copyright registration to what was actually registered, Plaintiff was left with very little to assert as protectable registered subject matter.

Here, and unfortunately for Spirit, the jury did not agree with its claim. They found unanimously for Zeppelin on all claims. Total time deliberating: less than one day. We think they got this one right.

Lesson learned: copyright registrations are trickier than they appear–what is actually deposited and claimed as the copyrighted subject matter really matters.