The Ninth Circuit Vacates Jury Verdict Finding “Stairway to Heaven” Did Not Infringe “Tauras”

It has been more than two years since a jury found Led Zeppelin’s “Stairway to Heaven” was not substantially similar and did not infringe upon Spirit’s song, “Tauras”. Now Led Zeppelin faces a new trial, after the Ninth Circuit vacated that decision in September 2018, citing erroneous and prejudicial jury instructions and misleading the jury on key copyright laws.

During the initial trial, Led Zeppelin was accused of stealing one of the most recognized riffs in the music business – the descending chromatic scale at the beginning of “Stairway to Heaven”. Responding to those allegations, Led Zeppelin’s counsel argued that the chord progression at issue dated back to the 1600s, making countless references to it historical use in the music industry. However, the jury neither heard a recording of “Tauras” nor “Stairway to Heaven” during the trial, but rather, listened to the testimony of musicologists and various renditions of “Tauras”, intended to mirror the “Tauras” sheet music that was subject to copyright protection. In other words, because “Tauras” was copyrighted before sound recordings were covered under federal copyright law, the District Judge disallowed the jury to hear an actual recording of the song. However, many claim the sheet music was not faithful to the recording and as such, failed to provide an opportunity for fair comparison of the two works.

Additionally, the District Court Judge failed to advise jurors that a combination of notes or scale may qualify for copyright protection, even when those individual elements alone may not, and erroneously advised that copyright does not protect short sequences of notes or chromatic scales. In its’ opinion, the Ninth Circuit held that the jury was improperly instructed about unprotectable musical elements and originality in the music space and recognized that while a single note may not be copyrightable, an arrangement of a limited number of notes can garner copyright protection. Although “Tauras” is subject to the copyright law that governs that work and as such, cannot be used to prove substantial similarity, the recording should have nevertheless been played for the jury to demonstrate Led Zeppelin’s access to “Tauras.”

For these reason, the Ninth Circuit held a new trial was warranted. In its decision, the Ninth Circuit further opined that during re-trial, the District Court should revisit the issue of whether an inverse ratio jury instruction is merited. Application of the inverse ratio jury instruction would lower the standard to establish similarity between the two songs, to the extent defendant had access to the work purportedly copied. Specifically, if a high degree of access to “Tauras” can be established, a lower amount of similarity between the two songs is needed to prove Led Zeppelin copied the work. Stay tuned for coverage on the new trial.

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Michelle is a Partner at Swanson, Martin & Bell, LLP and is licensed in Illinois and Indiana state and federal courts. With a Masters of Law in Intellectual Property, Michelle is the Vice Chair of the firm’s Entertainment and Media Practice Group and a member of the firm’s Intellectual Property Litigation and Transactional Services Practice Group. Her copyright and trademark practice focuses on intellectual property prosecution and related transactions, including performing trademark availability searches and providing advisory opinions, as well as preparing and filing trademark applications with the United States Patent and Trademark Office, and copyright registrations with the United States Copyright Office. Michelle also assists with the oversight of the firm’s extensive trademark docket and conducts required monitoring and maintenance of clients’ trademark portfolios, as well as provides clients with corporate counseling and innovative corporate solutions to address their respective needs.

Michelle further provides comprehensive representation in the drafting, negotiating and executing of various entertainment-related contracts and licenses, including but not limited to band member agreements, artist management agreements, session player agreements, performance agreements, sound engineer agreements, recording and personal services agreements, publishing agreements and licensing agreements. As a former artist manager, she has implemented many facets of national and regional tours, assembled benefit and charity concerts, communicated with various industry personnel, facilitated radio and internet publicity campaigns, arranged radio, print and internet interviews, and assisted in the development of press kits and websites promoting local talent. Michelle has also guest lectured on entertainment and intellectual property-related topics at The John Marshall Law School, DePaul University College of Law, Chicago-Kent College of Law and Azusa Pacific University (CA), as well as served as a panelist on various other entertainment-related continuing legal education courses. Michelle is an author and editor of the Litigation and Industry Updates Column of the ABA’s Entertainment & Sports Lawyers Journal and has also had numerous articles published by the Chicago Music Guide.

In addition, Michelle serves as Chair of Swanson Martin & Bell, LLP’s Community Service/Pro Bono Committee and proudly volunteers her time as President of the Associate Board and as a pro bono attorney to Lawyers for the Creative Arts, a non-profit organization that provides free legal services to eligible clients in all areas of the arts. She also currently serves as Events Chair for the Chicago Chapter of Women in Music, a non-for-profit organization dedicated to fostering equality in the music industry through the support and advancement of women. She recently served as Chair of the Young Lawyers Division for the Illinois Association of Defense Trial Counsel, where she was recognized as the Rising Star recipient and received a Meritorious Service Award and President’s Commendation.