After a brisk, colourful trial, a jury is expected to leave a Los Angeles federal courtroom and deliberate the question every rock fan has been forced to mull over for the past week: Did Led Zeppelin lift the distinctive arpeggio that opens “Stairway to Heaven” from Spirit’s 1967 instrumental “Taurus”?
The trustee for the estate of Randy Wolfe – better known as Spirit’s main songwriter, Randy California – is seeking $40 million from Zeppelin, alleging that their classic rock anthem violated his copyright.
The last high-profile verdict in a copyright infringement lawsuit – a $7.4 million award against “Blurred Lines” songwriters Robin Thicke and Pharrell Williams in 2015 that was later reduced to $5.3 million – generated a flurry of fretful suppositions about its effects on the music industry, copyright law and the ability of musicians to create freely.
If a jury orders Zeppelin to fork over even a fraction of what the Wolfe estate is asking, expect many more such predictions in the days to come. As rock fans prepare for the verdict, here’s what might — and might not — happen if Zeppelin loses.
The Law Remains the Same
This is a jury verdict, based solely on the unique facts of the case. Unlike a judge’s decision, which may offer a new interpretation of the law for future courts to take into consideration, a jury verdict sets no legal precedent. Copyright law as it exists today in the Central District of California will not change, regardless of how the jury decides. (Incidentally, this is also true of the “Blurred Lines” verdict, though ill-informed commentators continue to suggest that it somehow altered the law. Ignore them.)
A verdict for the Wolfe estate won’t make it easier for anyone to prove infringement in the future. And Michael Skidmore, the estate trustee, cannot brandish this verdict at the composers of “Chim Chim Cher-ee” – or at the writers of the other 65 songs that Led Zeppelin argued sounded similar to both “Stairway to Heaven” and “Taurus” – and ask them to cough up cash. That’s not how it works.
A Flood of Copycat Suits – or Not
If there’s a verdict for the plaintiff – especially a hefty one – many news reports on the trial will contain two quotes. The first will predict that this unwarranted windfall will lead to a gold rush of greedy plaintiffs filing spurious copyright claims against popular musical acts. The second will declare that no such thing is going to happen. The first will come from Led Zeppelin’s attorney; the latter will come from the Wolfe estate.
Lawyers don’t talk to reporters because they’re lonely. They have a story to tell, and they want the next jury they face to feel a certain way – either that copyright infringement verdicts are out of control or that wronged songwriters deserve their day in court. Read these quotes (and any others you encounter) in context.
Thing is, we have no way of knowing how many accusations of copyright infringement surface every year, if they’ve increased after the “Blurred Lines” verdict, or if they’d increase after a verdict against Zeppelin. Many of these allegations never even result in the filing of formal legal claims, let alone make it to court. They’re either brushed aside or settled for undisclosed sums. The big courtroom dramas may attract our attention, but the real battles over copyright infringement are waged offscreen.
A Plaintiff’s Market for Settlements
Whether’s there’s a rush to file new infringement suits or not, a verdict against Led Zeppelin may embolden songwriters who think their work has been copied, making them less likely to jump at the first settlement offer they get. Also, musicians facing those suits may be increasingly reluctant to risk a jury trial and more willing to add an extra zero or two to their end of their settlement sums. It hardly seems coincidental that Bruno Mars and Mark Ronson granted the members of the Gap Band songwriting credit on “Uptown Funk” so quickly after the “Blurred Lines” verdict as a way to dodge litigation. But again, though anecdotal evidence like this may grab headlines, most of this action, if it occurs, will take place behind the scenes.
A Chilling Effect?
Every act of copyright litigation raises a genuine concern that it will have a chilling effect on creativity. How can musicians create freely, drawing from their predecessors as artists have always done, while fearing a potential lawsuit down the road? But musicians are already more careful than they were in Zeppelin’s day. The music industry is less free-wheeling than it once was, and it’s hard to imagine a group that big today borrowing as freely from other musicians as Zeppelin did in its prime.
If you fear a chilling effect, look past the giant jury verdicts that grab the headlines and toward the ways in which Congress and the courts have expanded the scope of intellectual property law. Drastic copyright extensions that keep works out of the public domain long after a creator’s death, court decisions that forbid unlicensed sampling regardless of its creative merit, cease and desist orders routinely issued from corporations against smaller artists — each of these does more to limit artistic expression than jury verdicts against superstars.
Second-Guessing at the Remastering Stage
Of more pressing interest to classic musical acts than the jury verdict here, for instance, is the 2014 U.S. Supreme Court decision that made this case possible: Petrella v. Metro-Goldwyn-Mayer, Inc.
There’s a three-year statute of limitations on copyright infringement lawsuits, and Led Zeppelin first recorded “Stairway to Heaven” in 1971. But in 2014, the band released a remastered version of that song. This counts as a new act of infringement, and a new three-year period to sue kicks in.
Still, prior to Petrella, plaintiffs who knew their copyrights had been violated but failed to act had a hard time proving to courts that they should be allowed to sue many years later. Even if the statue of limitations didn’t block their suit, they ran into a legal concept called “laches,” which says that parties who delay going to court for unreasonable amounts of time forfeit their claim.
In 2014, the Supreme Court ruled that laches should apply to copyright infringement suits only in extreme circumstances, and that decision allowed suits like this one to go forward – and should put acts remastering their catalog on guard.
Allegations that “Stairway to Heaven” mimicked “Taurus” had been circulating for years (from both Randy California and others). In the future, a legendary band in the process of remastering its catalog might take those assertions a little more seriously, brokering a deal in advance with a prospective plaintiff.
And if Led Zeppelin Wins?
The ultimate man-bites-dog result, a victory for the classic rockers would probably have no measurable effect on how the music industry relates to copyright law. Composers who think they have a strong claim probably won’t be discouraged. Even with a Zeppelin win, plaintiffs are still batting 1-for-2 in recent big money copyright infringement suits. A 50-50 shot at a big payout – who wouldn’t like those odds?