The copyright infringement lawsuit against Led Zeppelin over the songwriting credits and profits of its classic “Stairway to Heaven” has now gone to the jury, which began deliberations Wednesday morning.
In the sixth day of the case – “Michael Skidmore v. Led Zeppelin et al” (the “et al” referring to corporate defendants Atlantic Records, Rhino Records and Warner/Chappell Music) – both sides made final arguments in Court 850 of Los Angeles’ Edward R. Roybal Federal Building and United States Courthouse. The presiding judge, Gary Klausner, allotted counsel representing the plaintiffs (the trust of Randy “California” Wolfe, whose composition “Taurus” for the band Spirit they allege has been plagiarized) and Zeppelin’s defence team 45 minutes each to convince the eight-person jury of their arguments.
The plaintiff’s controversial attorney, Francis Malofiy, began the proceedings, giving his best performance to date in the trial – concisely summing up the various themes he’d presented with clarity and force and largely never veering out of control. (Judge Klausner has repeatedly sustained objections over procedure against Malofiy throughout the trial.) “This case is about one thing: credit,” Malofiy began, noting his plaintiff requested songwriting credit for Wolfe and one-third of royalties of “Stairway.” “This case is about copying. Give. Credit. Where. Credit. Is. Due.”
Malofiy reiterated testimony from the plaintiff’s expert witnesses that both “Taurus” (an instrumental) and “Stairway” share “substantial similarity” in their use of a descending chromatic scale “in a unique and original way … That is memorable and unique.” He attacked Jimmy Page and Robert Plant as having a “selective memory” on the stand, asking if their “memory is better now or in 1969 or 1970” (at which time the Zep members gave interviews that seemed to contradict their testimony about their knowledge and appreciation of Spirit’s material, as well as having seen the band live).
Those interviews – both in their raw audio form and in print – alongside Zeppelin having covered Spirit’s song “Fresh-Garbage,” served as a smoking gun in the plaintiffs’ eyes that proved the band had “access” to Spirit recordings. Malofiy also cited the fact that Page owned five Spirit albums, including its 1968 self-titled debut that included “Taurus,” and that Page’s testimony contradicting ancient Zeppelin folklore that the intro of “Stairway” was written at the Welsh cottage Bron-Yr-Aur was a “complete rewriting of history.”
Malofiy also seemed to rub in the defense’s face that they were unable to call an expert witness to assess damages: He told the jury it had wide latitude to assess damages as “somewhere in the middle” of $10 million alleged gross profits, adjusting for the fact that “Stairway” is one of Zeppelin’s most popular songs in its catalog.
Malofiy did have some spurious and humorous moments in his final arguments, however. He continued to emphasize the legally questionable “Jimi Hendrix defense,” going on about Wolfe’s early association with the guitar god. (Not surprising considering Malofiy once sued the Rock and Roll Hall of Fame for “falsification of rock and roll history,” a claim repeated in his case against Led Zeppelin.)
He also repeated the absurd assertion that Jimmy Page’s ability to write original songs was compromised by his time as a session musician “playing others’ music.” Malofiy seemed to approach the case on a pass/fail basis: In his rebuttal to the defense, he reminded the jury members that he only needed to prove his case by “51 percent” – sticking his arms out and tilting his body as if he’d become the personification of the scales of justice himself.
The defense’s lead counsel, Peter Anderson, also displayed humor in his final argument – often to his advantage. “The best place to start is [Malofiy said the case could be summed] up in six words from the Bible: ‘In the beginning God created…’ He promised six words but delivered only five – and throughout this case he’s made more promises, but hasn’t delivered.”
Anderson had some setbacks early on, though. He repeated his assertion that Hollenbeck Music (a publishing concern owned by legendary music producer and impresario Lou Adler) actually owned the “Taurus” copyright; that argument was rendered null, however, when Judge Klausner affirmed, in his instructions to the jury, that the trustees of Randy Wolfe’s estate indeed own the “Taurus” copyright.
Anderson also caused courtroom attendees to gasp when he repeated his belief that Wolfe’s son Quinn Wolfe, not his estate trust, may be Wolfe’s true heir; Klausner admonished him as this point had already been rendered legally inadmissible during Anderson’s earlier examination of lead plaintiff Michael Skidmore.
Wolfe’s family members in the gallery also registered audible shock when he suggested Spirit’s songs “would not even be remembered” – forcing him to seemingly improvise a quick apology to Wolfe’s sisters sitting in the first row. His disparaging of the plaintiff’s expert witness assessing damages, economist Dr. Michael Einhorn, was especially flinty, with Anderson noting he didn’t think the jury would “even get to damages” in delivering its verdict.
“Mr. Einhorn [submitted] the ugliest exhibits I’ve ever encountered in all my years of practice,” Anderson said, disputing the plaintiff’s assessment of the statutory period covered by the law in the same breath. He also cited the memory lapses under oath by Page, Plant and Zep bassist John Paul Jones as understandably “fallible” given the nearly five decades that have passed between the release of “Stairway” and the current lawsuit.
Anderson, however, kept returning to the strength of the defense’s evidence. “We have documentary proof, and what they have is printouts from the Internet.” On the question of access, Anderson claimed there was “no evidence that ‘Taurus’ was played” or that Plant was even in the audience during a hotly debated 1970 tour stop by Spirit in Plant’s Midlands U.K. hometown of Birmingham, and was not performed often by Spirit in concert. Anderson also stressed that whether or not the signature “Stairway” intro was created during Page and Plant’s stay at Bron-Yr-Aur was a “red herring.”
The defense also convincingly restated the sophisticated musical justifications expressed by expert witness and esteemed musicologist Lawrence Ferrara: Other than commonplace compositional “building blocks,” “Taurus” and “Stairway” shared no “substantial similarity” required by the dictates of copyright law.
Anderson concluded by stating “Randy California is entitled for credit for what he did, but not what he didn’t do, and Mr. Skidmore is not entitled [to his royalties]. [The plaintiffs] are asking you to take this iconic song, ‘Stairway to Heaven,’ and say it has a new parent in Mr. Skidmore.”
There seem to be no easy predictions, however, as to how the jury will rule. But even as the case winds up, it remained contentious, with each counsel team lobbing a volley of objections at each other right up until Judge Klausnser sent the jury out. Addressing both sides’ attorneys before calling recess, Judge Klausner asked, “Any other catfights or anything else?”