Randy Wolfe, nicknamed Randy California by Jimi Hendrix, was a musician and a member of the band Spirit. He wrote the song “Taurus” in 1966. Spirit’s first album Spirit – which included “Taurus” – was released in late 1967, Randy Wolfe was listed as author on the copyright registration.
Led Zepplin, formed in 1968, consists of Jimmy Page, Robert Plant, John Paul Jones, and John Bonham. Now that’s an all-star line up. Suffice it to say that “Stairway to Heaven” made money for Led Zepplin.
A dispute arose about who wrote the opening notes to “Stairway to Heaven.”
CLAIM OF COPYRIGHT INFRINGEMENT
Randy Wolfe passed away in 1997. His trust, owner of the “Taurus” copyright, sued in federal court alleging copyright infringement, claiming the opening notes of “Stairway to Heaven” are substantially like those in “Taurus.” After a 5-day trial, the jury returned a verdict for Led Zepplin finding Randy Wolfe’s trust owned the copyright to “Taurus,” Led Zepplin had access to the music, but the two songs were not substantially similar under the so-called extrinsic test.
To prove copyright infringement a plaintiff must show he/she owned a valid copyright, which the Wolfe Trust accomplished, and that Led Zepplin copied protected aspects of the work’s expression, called unlawful appropriation.
The extrinsic test, part of unlawful appropriation, is an objective comparison of protected areas of work accomplished by “breaking the works down into their constituent elements and comparing those elements to determine whether they are substantially similar.”
The other copyright test is the intrinsic test, a subjective comparison of the works: “whether the ordinary reasonable person would find the total concept and feel of the works to be substantially similar.” Unfortunately, the trial judge did not also use the intrinsic test and allow the jury to compare the two songs.
WHICH VERSION OF THE COPYRIGHT?
An issue in the case was whether the music sheet deposited in the copyright office was the protected music or whether the music as recorded and played was the true copyright music. The trial court landed on the former and did not allow the jury to listen to a comparison of the actual music of “Taurus” against “Stairway to Heaven.” Big mistake.
The Ninth Circuit Court of Appeal overturned the trial judge’s ruling and ordered a new trial because of deficiencies in the jury instructions and not allowing the jury to hear the sound recordings of “Taurus” compared to “Stairway to Heaven.” Plus a handful of other mistakes by the trial judge.
“Stairway to Heaven” happens to be my favorite song or at least one of them, so I suppose, right or wrong, I am rooting for Led Zepplin. We’ll keep you posted.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com.
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