On May 31, 2014, the estate of Randy Craig Wolfe filed a lawsuit in the Eastern District of Pennsylvania against James Patrick Page, Robert Anthony Plant, and John Paul Jones, among others.[1] The primary cause of action is copyright infringement. There does not appear to be anything special about such a lawsuit until you realize that the Defendants are famous musicians that performed under the name “Led Zeppelin” and the “among others” includes Warner Music Group. The alleged basis for copyright infringement? Stairway to Heaven. Yes, the 1971 song that continues to be a staple at every middle school dance. Suddenly this lawsuit seems like kind of a big deal.
How is such an iconic song subject to a copyright infringement lawsuit 45 years after its initial release? How was this suit not dismissed as frivolous right away? Does the judge not know about this little thing called a ‘statute of limitations’? This all seems highly unfair, right?
Well, a jury gets to decide all of these issues as early as next month. On April 8, 2016, the district court judge denied the relevant parts of Led Zeppelin’s Motion for Summary Judgment and the lawsuit is set to proceed to trial.[2] In the meantime, a quick overview of this case and how 1970s copyright laws are still relevant today.
The (Disputed) Evolution of a Classic Song
Randy Craig Wolfe, also known by a stage name of “Randy California,” was a guitar player who once worked with Jimi Hendrix and later formed a band called Spirit.[3] By 1968, Spirit recorded a song called “Taurus” that was part of a self-titled album that charted on Billboard. It is a nice story, but no one is playing “Taurus” at school events or listing it among the greatest songs of all time. Or are they? Is “Stairway to Heaven” really just a modified recording of “Taurus” with the same essential chord progression and identifiable passages?
“Taurus” is identified in a sound recording copyright registration dated December 22, 1967 with Hollenbeck Music named as the owner. Pursuant to industry custom, Wolfe’s songwriting output and any copyrights would automatically be assigned to the label under his recording contract. Wolfe’s estate, however, contends that Wolfe wrote “Taurus” prior to the recording contract as early as 1966. Wolfe’s sisters claim the song was written for his high school sweetheart. Either way, no one disputes that by 1968 “Taurus” was written and recorded and published.
According to the lawsuit, in the late 1960s and early 1970s, Spirit was on tour with an up-and-coming band called Led Zeppelin. Accordingly, if that is true, the members of Led Zeppelin were likely exposed to the chord progression featured in “Taurus” during this tour. In copyright law terms, this would constitute “access” to Wolfe’s song. The court concluded that on at least three different times between 1968 and 1970, Spirit and Led Zeppelin played at the same venue on the same day, with the original interaction being December 26, 1968.
Not surprisingly, the surviving members of Led Zeppelin claim they never interacted with Spirit. They deny sharing a stage with the band or ever listening to Spirit’s music. Equally unsurprising is that the members of Spirit recall a much more intimate series of interactions with Led Zeppelin, including backstage conversations. Beyond these anecdotal memories, there is not much in verifiable evidence to demonstrate interactions between the bands.
Meanwhile, the legendary story of “Stairway to Heaven” and its origins dates back to 1970, where Jimmy Page allegedly holed himself up in a remote cottage in Wales to compose songs by fireside. Among the output of this isolated writing experience was “Stairway to Heaven.” The song was eventually recorded in 1970-71 and released on the classic Led Zeppelin IV album. According to the court and testimony, “Stairway” was first performed live in March 1971. In the intervening 45 years, the introductory guitar part and opening chord progression has become iconic. To the extent that the song is annoyingly ubiquitous in guitar stores.
The Origins of a Copyright Dispute
The similarities between “Taurus” and “Stairway” are not a recent discovery. As noted by Judge Klausner in his recent decision, “fans and critics noticed the similarity between the two songs.” As early as 1991, Wolfe was interviewed about the overlapping similarities. He responded in that interview that Led Zeppelin members often sat in the front row for his shows and the bands were friendly. Wolfe even stated that if Led Zeppelin wanted to use his song “that’s fine.” Wolfe never demonstrated animosity towards Zeppelin and he never personally asserted copyright claims before he died.
Nevertheless, experts have noted striking similarities between the songs. Further, to the likely chagrin of Led Zeppelin and Warner Music, the 1991 interview by itself may not constitute a legal waiver of any copyright claims by Wolfe. This “waiver / abandonment” issue was part of the summary judgment request by Defendants but the court held that there was no overt waiver and that it is possible that Wolfe was “merely trying to save face and make light of a bad situation.” Some of Wolfe’s band members and friends also contend that, privately, he was upset about the alleged song theft. This was apparently enough to keep the claims alive.
Judge Klausner, after considering these facts and certain expert testimony, ultimately held in his April 8, 2016 decision that while there may not be a “striking similarity” between the two songs, there is still sufficient evidence of access and substantial similarity by Led Zeppelin due to certain aspects of the four-chord progression that “transcend the core structure” of common musical convention. In particular, Judge Klausner identified the descending bass lines, which he said is “arguably the most recognizable and important segments” of the two competing songs. Thus certifying the pending copyright dispute.
The Legal Analysis of the Copyright Claims
In copyright cases, “copying” of a song can be proven by either by direct or circumstantial evidence. This is often done through a two-part test of (a) access, plus (b) substantial similarity. In the absence of evidence of access, a copyright claimant can prove copying “if he can show that the two works are not only similar, but are so strikingly similar as to preclude the possibility of independent creation.”[4] As noted above, Judge Klausner rejected the claims of striking similarity as that was a high bar that was not met by the evidence on hand. Which means that Wolfe’s estate must proceed with the traditional two-part test.
Access to “Taurus”
Led Zeppelin toured with Spirit, or at least performed at the same venue on the same day. Led Zeppelin disputes the totality of this claim, specifically asserting that they did not hear the song or listen to Spirit’s music. The court appears to side with Defendants on this issue and held on April 8th that “the only remaining testimony” that is admissible is that Robert Plant attended a Spirit concert in 1970, thereby nullifying the claims of direct access. Of course, the facts are clear that Spirit did record and publicly disseminate “Taurus.” This should be enough, right? Well, not exactly – since “Taurus” as a stand-alone song never reached widespread critical acclaim or attention. The court accordingly held that there is not sufficient evidence of “wide dissemination” of the song to prove that Led Zeppelin had access that way.
Yet “access” can still be proven circumstantially. In particular, a “chain of events” can be set forth that shows how Led Zeppelin more than likely had access to the song. The record shows that both bands performed on the same days at same venues. This is undisputed. Spirit also regularly performed “Taurus” at these events. There is also testimonial evidence of backstage interactions between the bands’ respective members. Even more curious, there is evidence that Led Zeppelin admitted to covering a Spirit song that appeared on the same album as “Taurus.” While these independent pieces of evidence may be murky, on the whole, the totality of evidence was deemed sufficient to demonstrate a chain of events that showed access to the song by the relevant members of Led Zeppelin.
Substantial Similarity
The “substantial similarity” factors remain more of a jury issue and subject to expert testimony, though the court noted that “the only remaining similarity is the core, repeated A-minor descending chromatic bass line structure that marks the first two minutes of each song.” It may not be much, but it is enough to sustain a copyright claim.[5]
Statute of Limitations?
Even if we assume Led Zeppelin had access and there is substantial similarity – so what? What about the statute of limitations? It just feels unjust that a copyright claim can be brought nearly half a century after the initial alleged infringement. This is a strong part of Led Zeppelin’s defense. The court noted that the band claims it has been “severely prejudiced” by the four decade delay, based on lost documents, fading memories and deceased witnesses (notably John Bonham and Mr. Wolfe himself). Of course, the recent Supreme Court case of Petrella v. MGM dismissed the legal validity of “laches” as a defense to copyright infringement. Accordingly, the claims of “that’s just unfair” require more than prejudice. But there has to be a statute of limitations that bars a claim from arising at this late date. There just has to be.
With regard to statutes of limitations, however, civil actions in copyright law are different from other torts or criminal law proceedings. This is the statute of limitations as set forth in the current Copyright Act:
507. Limitations on actions
(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.
(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
Case closed, right? It has been way more than three years since “Stairway” was written. Except that every time a song is played, distributed, sold, or used in a way that is unauthorized by the copyright owner[6] – this is a “new” infringement that effectively restarts the clock. But what about monetary damages? Certainly Wolfe’s estate cannot allow 45 years to pass and then try to collect all the money from “Stairway,” right? That is essentially correct. Of course, Led Zeppelin continues to profit from “Stairway” to this day. Any sales and royalties from “Stairway” that accrued from May 31, 2011 to the present time (three years prior to the filing date by Wolfe’s estate) may be subject to the damages window. Some estimates peg the song’s value at over $10 million per year, which makes it economically worthwhile for the Plaintiff to pursue these claims.
The lawsuit itself seeks statutory damages of approximately $150,000 per infringement. This adds up quickly. In consideration of Wolfe’s death in 1997 that means the copyright for “Taurus” may not expire until 2067, assuming that Wolfe is the rightful owner of the song and the copyright. That is another 50 years-plus for the estate to cash in on “Stairway.”
Conclusions?
Like most copyright infringement claims, nothing is obvious. There is evidence of access, albeit circumstantial. There is evidence of similarity, though the degree of similarity is strongly disputed by Led Zeppelin and critics. The fame of “Stairway” alone does not factor into the copyright analysis at all. The judge has reduced many of the issues and eliminated claims of “striking similarity” from the analysis. Complicating matters is that with most of the evidence being based on testimony and memories from 50 years ago, the judge and jury will have a tough time deciphering what really happened back in 1967-1971.
The most likely outcome is a settlement, but if this proceeds through trial and verdict it could have ramifications throughout the music industry. If “Stairway” is not immune from copyright examination, nothing is. Of course, “Stairway” is not going anywhere – not even copyright law can stop the cultural impact of that song. The beneficiaries of it may change, but that is all.
[1] Skidmore v. Led Zeppelin, Civ. No. 2:14-cv-03089-JS (E.D. Pa. May 31, 2014). The case has since been transferred to the Central District of California.
[2] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (C.D. Cal. April 8, 2016).
[3] Wolfe died in 1997; the lawsuit is brought by his estate.
[4] Skidmore, 2016 U.S. Dist. LEXIS 51006 at *34 (citing Stabile v. Paul Smith Ltd., No. CV-14-3749, 2015 U.S. Dist. LEXIS 101291 (C.D. Cal. July 31, 2015)).
[5] Though it is strange that the bass line parts are what remain, and not the guitar parts – which is what Wolfe was known for.
[6] See 17 U.S.C. § 106.
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