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'Stairway to Heaven' Collapses on Appeal

By George Khoury, Esq. on October 02, 2018 | Last updated on March 21, 2019

The Ninth Circuit has ordered a new trial in the Stairway to Heaven copyright infringement case. And in case you're late to the party on this one, it involves a claim by the heirs of Randy California of the band Spirit, and a four-bar riff in their song Taurus.

Though the two songs date back to the late 60s and early 70s, the case was not filed until 2014, as Mr. California didn't seem to mind during his lifetime, and the heirs brought the action after the song was re-released in 2012 alongside a film. Notably though, the 2016 trial did not include the actual sound recordings, as the copyright for Taurus predates copyrights for sound recordings, but on remand to the trial court, the appellate court panel specifically stated that a jury should be allowed to hear the recordings.

Similar Riffs, Very Different Songs

According to many music experts, or anyone's own ears, the two songs are drastically different in nearly every way except the similar riff. And when you break it down, it's not even really that similar.

Which could mean that listening to the two songs at trial won't matter for the jury, or it could very well even make it easier to decide for Led Zeppelin again. Interestingly though, the court explained that the benefit to the jurors might come from seeing how particular witnesses respond when listening to the songs.

Proximity to Copy

Notably, one of the bigger issues on appeal involves whether Led Zeppelin's physical proximity to Spirit on the concert circuits, since the band did play several of the same shows, lowers the burden to prove copying. The appellate court explained here that the jury was mis-instructed, and that the district court should consider a special instruction if it finds the plaintiff's proof of proximity/access to copy compelling enough.

However, this order is still hot off the bench, so we may still see a rehearing en banc, or a further petition for cert. before this is through.

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