Led Zeppelin's lawyers will have an encore performance before a federal appeals court in an effort to avoid a second trial over whether the classic rock group copied the iconic intro of "Stairway to Heaven" -- and the issue of whether juries should hear sound recordings in disputes over songs created before such recordings gained federal copyright protection will likely take center stage.
An heir of Spirit songwriter Randy Wolfe sued the band in May 2014 claiming "Stairway" infringes his 1968 instrumental piece called "Taurus." Jimmy Page and Robert Plant won the initial trial, when a jury in June 2016 found that they believed the Led Zeppelin members had heard "Taurus" before creating "Stairway" but didn't find the works to be substantially similar.
The 9th Circuit in September 2018 handed Wolfe's camp, plaintiff Michael Skidmore, a win and ordered another trial. That panel found that the jury had been improperly instructed about unprotectable music elements and originality. It also held that even though "Taurus" was created before sound recordings were protected by federal copyright law and shouldn't be used to establish substantial similarity the jury should have been able to hear the song because it would have been valuable for them to observe Page's demeanor while listening to it.
The 9th Circuit on Monday announced that a majority of its active and nonrecused judges voted to rehear the matter en banc.
Both sides had requested rehearing, taking issue with different parts of the 9th Circuit's decision.
Zeppelin lawyer Peter Anderson argues: "Respectfully, the decision errs in faulting the district court for omitting a selection-and-arrangement instruction even though plaintiff objected to the district court giving it, and for instructing -- correctly -- that copyright does not protect public domain elements. The decision also errs because more probably than not the verdict would have been the same. The errors warrant en banc review because if left uncorrected they allow a jury to find infringement based on very different uses of public domain material and will cause widespread confusion in copyright cases in this Circuit."
Meanwhile, Skidmore's lawyer Francis Malofiy argues: "Nearly every song composed from 1909 to 1978, excepting classical music, was composed on instruments, not sheet music. The lead sheets submitted to the Copyright Office are complete enough to identify the songs, but almost never consist of all the notes in the musical compositions. ... There is no evidence, no statutory text, and no reason to believe that Congress ever intended that an author converting his common law copyright to a federal copyright by registration could possibly shrink/modify the scope of his already existing copyright."
Oral arguments are currently set for the week of Sept. 23.