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Opinion Stairway to (copyright) Heaven

The “Stairway to Heaven” copyright lawsuit, about which I blogged several years ago, is back, this time in federal court in California, and it’s getting a fair bit of attention — possibly deserved, possibly not. The suit alleges that Led Zeppelin’s classic “Stairway to Heaven” — No. 31 on Rolling Stone’s “Top 500” list (overrated, in my view) — the copyright to which is worth a conservatively estimated 3 gazillion dollars — infringes the copyright of the song “Taurus,” released two years before “Stairway” by the band Spirit. The suit is being brought by the estate of Randy Wolfe, a.k.a. “Randy California,” lead guitarist in Spirit and (apparently) the author of “Taurus.”

[Full disclosure: Plaintiff’s lawyer, Francis Malofiy, was a student of mine some years ago at Temple Law School, though he and I have not stayed in touch or had any communications about this case.]

In a sensible legal universe, perhaps, this is the sort of case that could be disposed of in a couple of days. There’s really only a single question: Did the author(s) of “Stairway” copy a substantial amount of copyright-protected material from “Taurus” and incorporate it into their song? In a sensible legal universe, perhaps, you’d gather a jury together, play a recording of “Taurus” and one of “Stairway to Heaven,” repeat several times, and then ask: Do you think that the author(s) of “Stairway” copied a substantial amount of copyright-protected material from “Taurus” and incorporated it into their song? Yes or no?

[You can hear excerpts from the two songs here. And a couple of interesting musical comparisons here and here.]

But that is not, alas, our legal universe. In our legal universe, the process of answering that simple question will take years, cost many hundreds of thousands of dollars and involve any number of dense and complex 20-page (single-spaced) judicial opinions — like the one issued last week by Judge Klausner, denying the defendants’ motion to dismiss plaintiff’s claim and holding that the case can proceed to trial.

Have a look at Klausner’s opinion to get a sense of how a pretty simple question becomes very, very complicated. No criticism of Klausner is intended by that — I actually think it’s a very good opinion, covering all of the necessary ground and giving thoughtful and well-reasoned consideration to all of the subsidiary questions. He is doing what the law requires him to do — and that is where the problem lies.

The relevant facts take only two pages; the rest is all legal complexification. There are the competing experts’ reports to consider — three separate reports submitted by plaintiffs, two by the defendants — comparing the similarities and differences between the two songs, followed by a veritable algal bloom of legal questions: Had plaintiff abandoned his copyright? Was the claim barred by the equitable doctrine of “laches” (unreasonable delay)? Had plaintiff complied with the relevant requirements to which he was subject in 1968 for obtaining copyright in “Taurus”? Did plaintiff own the copyright in “Taurus”? Was it a “work made for hire”? Were the two works “strikingly similar,” or were they merely “substantially similar” — under both the “intrinsic” and the “extrinsic” similarity tests? Was there any direct evidence that the defendants had ever actually heard the song? Any circumstantial evidence? Under which theory — the “wide dissemination” theory, or the “chain of events” theory? …

Some of the complexity, to be sure, is probably unavoidable and inherent in the question being asked. Copyright law does (and should) require the plaintiff to establish more than just “the songs sound alike.” He has to establish that the authors of “Stairway” actually copied from his work — not just that there are similarities between the two songs, but that the similarities are due to the fact that the defendant “lifted” material from “Taurus” and put it into “Stairway” (and not due, say, to mere coincidence, or to the fact that both songwriters were drawing from the same source).

That is going to make things complicated, because it requires an inquiry into the circumstances surrounding the creation of “Stairway” — where were you, how did it come to you, who was present, what was going through your head …

And it’s complicated, too, because the plaintiff not only has to establish that the defendant copied from his work, but also that the material that was copied was protected by copyright. Much of “Taurus” — much of every song — isn’t protected by copyright at all, because every song contains a great deal that is not “original” to the song’s author. “Taurus” begins in the key of A minor — but that’s not part of Randy Wolfe’s copyright, of course. So that similarity between “Taurus” and “Stairway” — the fact that they both begin in A minor — is completely irrelevant to the infringement analysis and has to be “filtered out”; even if Led Zeppelin had copied that from “Taurus,” it wouldn’t matter, because it’s not protected by copyright. Same for “a descending bass line” — not protected.

So that means that not only does the court have to reconstruct the circumstances surrounding the creation of “Stairway” (to see whether material had been “copied” into it), the court also has to reconstruct the circumstances surrounding the creation of “Taurus” (to determine how much of it was “original” when it was created and, therefore, protected).

And all of this may have to be done (as here) 40 years or so after the fact(s).

[If you’re wondering, as you well might be, whether there isn’t some sort of statute of limitations for copyright claims that would bar this sort of thing, the short answer is: There is a statute of limitations (three years), but if “Stairway" infringes the copyright in “Taurus," the infringement is ongoing; every distribution of a recording of “Stairway," every performance of the song on the radio, etc., constitutes a new infringement, and there have been, obviously, many of those during the past three years].

It’s a Dickensian mess; it does make one wonder whether it really is worth all the effort, when you’d probably get perfectly reasonable results in a two-day proceeding.