Stairway to the Ninth Circuit

Published: March 11, 2020

By Jim Lichtman
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“No amount of money is worth having to sing ‘Stairway to Heaven’ like you mean it, night after night, after night, after night….”Robert Plant, co-author, Stairway to Heaven, on refusing to reunite with rock band Led Zeppelin for a world tour.

Photo: Evan Agostini / AP

While the lyrics (largely obscure) are magical and mystical, (especially if you’re having an enhanced reality experience), some stalwart rock aficionados wonder if the 70s rock anthem is overrated.

“Stairway to Heaven,” American Songwriter maintains, “was to FM radio what The Godfather was to cinema: an epic unrivaled in its grandeur and incalculable in its influence.”

Nonetheless, rock guitarist Randy Wolfe (aka Randy California) was singing a different tune.

“People always ask me why ‘Stairway to Heaven’ sounds exactly like ‘Taurus,’ which was released two years earlier…. [Led Zeppelin] opened up for us on their first American tour,” Wolfe wrote in the liner notes of Spirit’s first album.

Although Wolfe died in 1997, his estate sued Zeppelin’s Plant and co-writer Jimmy Page for copyright infringement, claiming that the two copied aspects from Wolfe’s rock song “Taurus.”

In 2016, the New York Times reports, that “The band’s lawyers argued that what little the two songs had in common — a chord progression and a descending chromatic scale — were musical elements too basic to be protected by copyright. A musicologist testifying on Led Zeppelin’s behalf said that similar patterns have popped up in music for over 300 years.”

The lengthy 9-2 decision by the Ninth Circuit Court of Appeals in San Francisco on Monday concluded that there was no “substantial similarity.”

NPR’s Andrew Limbong describes the years-long process.

“Sensing a similarity, Wolfe’s estate filed a copyright infringement lawsuit in 2014, looking for co-writing credits and royalties. The case went to trial two years later in front of a jury which wasn’t allowed to do what we just did – listen to the songs – because ‘Taurus’ was written before federal copyright covered recordings. So all that was argued over in court was sheet music. The 2016 trial landed in favor of Led Zeppelin. There was an appeal, which today also landed in favor of Zeppelin.”

“Zeppelin wins on a technicality,” Wolfe estate attorney Francis Malofiy said.

Musicologist Brian McBrearty explains infringement. “When we’re trying to determine if copying has taken place, we look at two pillars of copyright infringement. The one pillar is similarity.”

“He says the next pillar is access,” Limbong adds. “Do we think an alleged infringer heard song A before writing song B? The two pillars, taken together, are known as the inverse ratio rule.

“The inverse ratio rule,” McBrearty describes, “is the idea that in an infringement case, while you need to prove both of those – similarity and access – that we might lower the threshold for one of them if we have a whole lot of the other one.”

“The court ruled today that even though the two bands played together before Led Zeppelin recorded Stairway to Heaven, there wasn’t enough evidence for either pillar – similarity or access – to apply,” Limbong says.

“…this access argument has helped win previous high-profile copyright cases against such artists as Robin Thicke and Katy Perry. McBrearty says this might have some people thinking twice about bringing lawsuits against big stars.”

“Fairness,” ethicist Michael Josephson writes, “is one of the most elusive ethical values since, in most cases, stakeholders with conflicting interests sharply disagree on what is fair.”

Considering musicologist McBrearty’s examination, there is only one vague similarity to Wolfe’s song… the opening guitar riff. Listening to both, however, Zeppelin’s Stairway has a more distinct execution of the notes and the song goes in a different direction than “Taurus.”

So for Zeppelin’s Page and Plant, “everything still turns to gold.”

As for Malofiy, he’ll appeal.

And he’s buuuuying a staaaaair-way… … to the Supreme Court.

Comments

  1. Yes, but…did they play both recordings backwards/sdrawkcab listening for secret messages? Is Paul dead? Is someone saying, Stairway is really Taurus?

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