Written by: Darian Hogan
Edited by: Wil Rios & Lauren Landau
Most of us are aware, at least passively, of the infringement kerfuffle surrounding Led Zeppelin’s “Stairway to Heaven” and Spirit’s “Taurus.” What started as perhaps a standard infringement suit has dragged on and blossomed into a high-profile case considering seminal issues in music litigation such as infringement defenses, evidentiary issues, conflicts of law and standard-of-proof inquiries. Earlier this week, the 9th Circuit passed a landmark decision on this litigation, which has altered the future of infringement cases in the jurisdiction by abolishing what is colloquially referred to as the “Inverse Ratio Rule.”
In May 2014, Michael Skidmore, a co-trustee of the Randy Craig Wolfe Trust (honoring Spirit guitarist, Randy California), brought suit against the members of Led Zeppelin, collectively and individually, alleging both contributory and vicarious infringement as well as “Falsification of Rock n’ Roll History,” whatever that could mean. The essence of the complaint is that the opening bars of Zeppelin’s “Stairway to Heaven” and Spirit’s “Taurus” are substantially similar such that Zeppelin infringed on Spirit’s copyright protection in the unpublished composition.
Naturally, Zeppelin denied the substantive allegations and lodged several affirmative defenses including laches, a valid defense considering both compositions were written over 50 years ago. However, in the opinion released this week, the Court quotes a 2014 Supreme Court decision, which stated that if the copyright is ongoing, laches is not a valid defense.
At the district court level and prior to trial, a partial motion for summary judgment and an evidentiary motion in limine ultimately limited the scope of Taurus‘s protection to that of the deposit copy submitted with its copyright application and prohibited the jury from hearing the work’s sound recording even under limiting instructions.
The trial proceeded for five days on the issues of access and substantial similarity. In large part, the litigation consisted of grueling expert musicologist testimony on both sides examining the granular nuances of each composition note-by-note. This process undoubtedly generated a tremendous amount of confusion among the jury. Ultimately, the jury ruled in favor of Led Zeppelin finding that though the band had access to “Taurus,” the compositions were not substantially similar sufficient to demonstrate the copying necessary to pin liability on the band. Skidmore appealed, challenging several legal issues including jury instructions and the exclusion of the sound recording.
At this point, procedurally it gets a little messy. The district court amended the jury verdict to name all the defendants. Then, a 9th Circuit panel vacated the amended judgment and remanded for a new trial. Finally, the 9th Circuit granted a rehearing en banc, which led to the decision earlier this week.
In the interest of brevity, Figure 1, below, maps out the course of infringement litigation. Summarily, Feist Publications, Inc. v. Rural Tel. Serv. Co., plainly states that “[t]o establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”  In the Zeppelin case, the Court’s opinion points out that the Trust’s ownership of a valid copyright in “Taurus” was not challenged, and thus the only element left on appeal is whether Led Zeppelin copied original portions of the protected composition.
As can be seen in Figure 1, each of the aforementioned elements are further broken down into additional prongs, which the court walks through in its full opinion. Of particular interest here is the issue and application of the “Inverse Ratio Rule.”
The second prong of an infringement suit requires either direct or circumstantial evidence of the defendant’s copying. Direct evidence being rare, much infringement litigation hinges on a showing of both access and substantial similarity. Gradually, and in an attempt to ease the evidentiary burden, some jurisdictions considered “lower[ing the] standard of proof of substantial similarity when a high degree of access is shown.” 
It is important to note that the evidentiary question regarding the exclusion of the sound recordings (in the presence of the jury on the issue of access) was rendered moot when Jimmy Page testified that he owned “A copy of the album that contains ‘Taurus,’…in [his] collection.” With this testimony, the jury unsurprisingly found that the band had requisite access to satisfy the element. Therefore, the only questions that remain are toward the works’ substantial similarity and whether it was appropriate for the court to deny an inverse ratio instruction.
Section IV(A) of the court’s opinion points out that the majority of jurisdictions that have considered the inverse ratio rule have either not adopted it or have rejected it outright. The 7th Circuit is quoted as stating that it has “never endorsed the idea that ‘a high degree of access’ justifies a ‘lower standard of proof’ for similarity[,]” and only the 9th and 6th Circuits have adopted it. 
The court then recites the history of the rule’s inconsistency in the 9th Circuit, spotlighting the immense confusion it has caused not only among judges but also among jury pools. Substantial similarity is an element that must be demonstrated under both copying and unlawful appropriation to succeed on an infringement claim, yet inverse ratio is only applicable under the copying prong of the test. Further, the Court reminds that in the Three Boys Music case it said that “ [the rule] is not a two-way street: while [it] ‘requires a lesser showing of substantial similarity if there is a strong showing of access,’ it does not mean that ‘a weak showing of access requires a stronger showing of substantial similarity.”  Then, eighteen years later, it spun around and said in Rentmeester that the “more compelling the similarities supporting an inference of copying, the less compelling the evidence of access need be.” 
In its final remarks, the Court opines that in today’s digital world, the concept of “access” requires little evidentiary showing and that “to the extent ‘access’ still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity[.]” In doing so, the Court expressly abrogates the inverse ratio rule in the 9th Circuit. Although weary in overruling precedent, the Court states that the “judge-made [inverse ratio] rule could fittingly be called the ‘inverse burden rule[,]’” and “it is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties[.]”
The Court’s opinion continues through several other jury instruction issues and ultimately decides that Skidmore’s infringement claim would have failed, even if every proposed instruction was given, as a matter of law, because the passages of the two compositions were not “virtually identical.” There are many potential implications of this decision on the future of music litigation, but the most obvious—or perhaps hopeful—is that it will prevent frivolous suits for which access could be easily proven and leveraged by an outdated and nonsensical rule having no basis in the annals of copyright law.
March 31, 2020 Addendum: Zeppelin Decision Sheds Light on Copyright Originality
Written By: Darian Hogan
In addendum to my previous post, which focused on circumstantially proving the copying prong of an infringement suit and the cancellation of the “inverse ratio rule” stemming from the landmark Led Zeppelin decision, it is worth noting that the decision has also prompted some forward movement in the lingering Katy Perry “Dark Horse” suit as well as the previously stayed Ed Sheeran “Thinking Out Loud” litigation.
The central issue of the “Dark Horse” case is, essentially, at what point does a copyright owner have protection over a collection of musical notes in a composition? In sum, a Christian rapper sued Katy Perry for allegedly infringing a repeating eight-note phrase from one of his works. Last year, a jury found in favor of the rapper awarding $2.8 million in damages. However, last week, the presiding District Court Judge, Christina Snyder, vacated the jury verdict citing the “virtually identical” doctrine put forth by the 9th Circuit’s Zeppelin decision from the prior week.
To give some context, look back at Figure 1 from my previous post. The Katy Perry suit is concentrated on the extrinsic test under unlawful appropriation. The dispute is whether the plaintiff rapper’s eight-note phrase is sufficiently original to warrant copyright protection and therefore proof of substantial similarity and Perry’s unlawful appropriation of the work.
Bridgeport Music Inc. v. Dimension Films, tells us that musical phrases as short as three-note arpeggiated chords can be both original and creative enough to justify copyright protection. Yet, this protection is contingent upon the particular use and “aural effect produced by the way the notes and the chord are played. Outside of that narrow originality argument, musical notes are considered a generic building block of all music.
Music notes, like geometric shapes, facts, or phone numbers are not copyrightable material, at least individually, which we know from the Feist decision. Although, the courts in both the Zeppelin and Perry decisions reference the “thin” copyright protection available to selection and arrangements of non-copyrightable elements. The Zeppelin opinion points out (in a footnote) that “where there is a narrow range of available creative choices, the defendant’s work would necessarily have to be ‘virtually identical’ to the plaintiff’s work in order to be substantially similar” to determine unlawful appropriation.
1 Petrella v. Metro-Goldwyn-Mayer, Inc. ), 572 U.S. 663, 668 (2014)
2 Feist Publications, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 (1991).
3 Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996).
4 Skidmore v. Led Zeppelin, No. 16-56057 (9th Cir. filed Mar. 9, 2020).
6 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000).
7 Rentmeester v. Nike, Inc. , 883 F.3d 1111, 1124 (9th Cir. 2018).
8 See supra note 4.
9 Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 839 (M.D. Tenn. 2002).
10 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
11 Skidmore v. Led Zeppelin, No. 16-56057 n.13 (9th Cir. filed Mar. 9, 2020).