According to Law360, LED ZEPPELIN‘s attorneys have asked the Ninth Circuit appeals court to reconsider its recent ruling in the “Stairway To Heaven” copyright lawsuit.
In late September, a federal appeals court decided unanimously to overturn a jury’s decision that LED ZEPPELIN‘s 1971 classic was not a rip-off of the 1968 instrumental song “Taurus”.
Michael Skidmore, the trustee of “Taurus” songwriter Randy “California” Wolfe‘s estate, had brought the claims more than four decades after “Stairway To Heaven” appeared on LED ZEPPELIN‘s untitled album, better known as “Led Zeppelin IV”.
In the latest brief, filed on Friday (October 26), the group’s representatives argue that by overturning the original judgement, the appeals court could “cause jurors to find infringement just because the same unprotected elements are present, upsetting the ‘delicate balance'” between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music. The filing goes on to state that “if uncorrected,” the Ninth Circuit’s recent conclusion will “allow a jury to find infringement based on very different uses of public domain material” which, it then argues, “will cause widespread confusion in copyright cases in this circuit.”
In June 2016, a Los Angeles jury deliberated for about five hours before deciding unanimously in favor of LED ZEPPELIN.
The verdict in the LED ZEPPELIN case came down within 15 minutes of the jury’s request to re-listen to both SPIRIT‘s “Taurus” and “Stairway To Heaven”. They wanted to hear a section of each song twice, alternating from one to the other. They decided that what they heard wasn’t substantially similar enough to call it copyright infringement.
Skidmore appealed, and in September, a three-judge panel of the U.S. 9th Circuit Court of Appeals decided a new trial was needed because the judge who presided over a 2016 trial had given erroneous and prejudicial instructions to the jury.
The court said the judge erred by telling the jury that common musical elements, such as “descending chromatic scales, arpeggios or short sequences of three notes,” were not protected by copyright. The court also said the jury should have been permitted to hear the album recording of “Taurus”.
“Without a selection and arrangement instruction, the jury instructions severely undermined Skidmore‘s argument for extrinsic similarity, which is exactly what the jury found lacking,” wrote Circuit Judge Richard A. Paez, for the court.
Immediately following the June 2016 verdict, LED ZEPPELIN‘s Jimmy Page and Robert Plant released a statement saying that they were glad to see the issue resolved.
“We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway To Heaven’ and confirming what we have known for 45 years,” they said. “We appreciate our fans’ support, and look forward to putting this legal matter behind us.”
Plaintiff’s attorney Francis Malofiy later claimed he lost his case on a technicality, insisting that it was unfair the jury was unable to listen to the sound recording of “Taurus” and instead was limited to hearing an expert performance of the registered sheet music.
Malofiy received over a hundred sustained objections and “multiple admonishments” during the ZEPPELIN trial, with the band’s publishing company Warner/Chappell Music filing documents asking the judge to order the plaintiffs to pay over $613,000 in costs for defending against the lawsuit.