Monday, October 01, 2018

Skidmore v. Led Zeppelin (9th Cir. - Sept. 28, 2018)

I did not know that there was a dispute about whether Led Zeppelin ripped off "Stairway to Heaven" from a different artist.  Apparently there is.  And, after this opinion, it's a dispute that's about to go to trial.  Again.  The first jury decided in favor of Led Zeppelin.  But various errors at trial require a remand.

So Round II will presumably commence in 2019.

As someone who became of age in the '80s, the origin of "Stairway to Heaven" matters to me.  It was a song often played at the end of early '80s high school dances.  I remember it well.  Fondly, even.

This may explain why I cared enough to listen to the original song -- Taurus, by Spirit -- to come to my own conclusion about whether the first jury's conclusion seemed right.  I think it's fairly clear from the evidence at trial that Led Zeppelin had access to "Taurus," and the Ninth Circuit seems right to me that this is pretty relevant on retrial.  And the notes beginning at the 48 second mark (or so) of Taurus are indeed chillingly similar to Stairway to Heaven, as are some later notes.

But if you read the comments to the Spirit song -- all 11,381 of them (!) -- maybe the first jury got it right that those few notes are fairly common.  Not sure.

In the end, the district court seems to have gotten it right by sending the case to the jury, and if a jury says it infringes (or doesn't), okay.  Either conclusion seems reasonable.  That's why we have juries.

And the next time, they'll be instructed accurately.

I agreed with the Ninth Circuit on two ancillary points as well.  First, come on, play the song for the jury.  It may well be only the "sheet music" that's protected by the relevant statute, but when Jimmy Page gets cross-examined, the jury should hear the song.  Glad that'll happen on remand.

Second, the strict time limit of 10 hours for trial per side (per Judge Klausner) is silly.  Glad the Ninth Circuit was skeptical of that as well.  This is a big deal.  Ostensible "efficiency" has its costs.  There's no need for the trial to take five weeks.  But 10 hours is silly.  Get reasonable.

In the end, I like the Spirit song.  Wouldn't have otherwise known about it.

But I like "Stairway of Heaven" more.  If only for sentimental reasons.