A 54-page decision (read here) will likely become a new standard in copyright infringement cases and may be presented to the Supreme Court. Among other aspects of the decision, the Ninth Circuit determines it was not in error that the jury didn't get to hear the "Taurus" sound recording at trial. Furthermore, the appeals court elects to ditch the "inverse ratio rule," meaning the higher the degree of access to a work, the lower the bar for proving substantial similarity.
Michael Skidmore, the Trustee for deceased Spirit songwriter Randy Wolfe, sued the band in May 2014. Wolfe's "Taurus" instrumental was authored before federal law covered sound recordings. Under the 1909 Copyright Act, authors obtained copyright by making deposits of their work with the U.S. Copyright Office. Before trial, the judge determined this meant that the sheet music was protected and that the jury shouldn't hear unprotectable music elements in the sound recording.
In June 2019, a pair of Ninth Circuit judges decided that while the scope of protection for an unpublished musical work is defined by what was deposited with the Copyright Office, it was nevertheless an error to not allow the jury to hear the "Taurus" sound recording because it could have been used by plaintiff to demonstrate Led Zeppelin's access to the song. Additionally, the prior decision held that the jury was improperly instructed about unprotectable music elements and improperly instructed on originality.
Neither side was entirely happy with the appellate court's initial conclusion. The heir of Wolfe (also known as Randy California) sought reconsideration on the determination that the scope of the song's copyright was solely determined by what was deposited with the U.S. Copyright Office while Led Zeppelin argued that the correction of any errors would have led to the same jury result. Once the Ninth Circuit decided to rehear the case, it gained importance because among other things, it set different copyright standards for older works and led to some arguing that only those with classical music training — i.e. could notate music — would gain the benefit of protection. Even the Trump Administration weighed in on the dispute.
"The world of copyright protection for music changed dramatically during the twentieth century and those changes dictate our analysis here," writes M. Margaret McKeown in the majority en banc opinion.
"Although Skidmore offers a host of reasons why adherence to the statute complicates proof in copyright cases, these arguments cannot overcome the statutory requirements," later continues the opinion, soon adding, "Skidmore also complains that restricting protection to the deposit copy disadvantages musicians who do not read music because it can be time consuming and expensive to make an accurate deposit copy. Apparently, that was not a problem here, as Wolfe’s work was transcribed for the sheet music deposit. Digital transcription and other technological advances undercut this argument, not to mention that for decades now, sound recordings have been accepted as the deposit copy. Finally, Skidmore offers conjecture about what might happen if a deposit copy were lost or destroyed. We need not play this 'what if' guessing game because the statute is clear and unambiguous."
This article was originally published by The Hollywood Reporter.