Kenneth A. Linzer and C. Dana Hobart are partners at the law firm Hobart Linzer LLP, a Los Angeles-based trial boutique, representing the entertainment, intellectual property and technology industries. The firm has successfully represented copyright rights holders over their close to 25 years of practice.
A lawyer for the defunct 1960s band Spirit says the band plans to file a copyright infringement action against Led Zeppelin for its iconic “Stairway to Heaven” song, arguing that the opening notes of “Stairway to Heaven” are too similar to a few notes from Spirit’s song “Taurus”. Spirit seeks a co-writer’s credit for Randy California, the band’s deceased guitarist and songwriter, and an injunction to block the impending release of the remastered vinyl and CD deluxe reissues of Zeppelin’s album catalog.
Will a court tell Spirit to ramble on?
On first listen, an infringement that would have first occurred more than 40 years ago seems farfetched. But, coincidentally, the U.S. Supreme Court decided the very issue just this week in a copyright infringement action against MGM involving the Martin Scorsese-directed film “Raging Bull” about boxer Jake LaMotta for which Robert De Niro won the best actor Oscar in 1980.
In siding with Paula Petrella, the heir of LaMotta’s friend and screenwriter, Frank Petrella, Justice Ruth Bader Ginsburg in a 6-3 decision found that even though Petrella waited 19 years to bring the action, she should not be barred from seeking redress – be it money, past or future royalties, or even an injunction – so long as she was only seeking recovery for an infringement within the three-year period before the lawsuit was filed as provided in the Copyright Act. So, Zeppelin might be on the hook for three years’ of royalties, but, no more.
The “Raging Bull” decision means that if Spirit only seeks relief for the past three years, the fact that it sat on its alleged rights for decades won’t stop the lawsuit. Spirit says the delay in suing was because its members and their survivors haven’t had the means until now. In most cases, that excuse wouldn’t work. But the Supreme Court pointed out that copyright law is different and allows a “copyright owner to defer suit until she can estimate whether litigation is worth the candle.”
If the passage of time won’t deflate Spirit’s lawsuit, what are the chances that the threatened injunction will prevent the release of the highly-anticipated Zeppelin album or, more importantly, squeeze a payment out of the Zep? Here, Spirit’s candle might not burn as brightly.
Spirit will have to convince a judge that it would be “irreparably harmed” if the new album containing “Stairway” was released – a dubious position in light of Spirit’s laid-back behavior while millions of copies of “Led Zeppelin IV” containing “Stairway” were sold over the years. Ever the astute businessmen as well as musicians, Zeppelin never released “Stairway” as a single, so fans had to buy the album to enjoy its ear-pleasing notes.
Also, Spirit will have to prove that preventing the release of the remastered album is the only way to protect its rights, something equally doubtful when money damages will suffice in the event Spirit proves that the two songs remain the same. Conde Nast Portfolio estimated that Zeppelin rang up more than a half-billion dollars in album sales. So, while Spirit may claim that artistic recognition is all they really want, the timing of the lawsuit tells us that money will suit them just fine.
Last, Spirit has to prove that it is likely to win the case if there ever were a trial. Here, the decision will be in the ear of the beholder. Music copyright infringement lawsuits are threatened all the time. But there are more than a few stairs to climb in proving a song has risen from a mere inspiration (okay under the law) to imitation (close to infringing) to actual infringement – where the gold glitters.
Spirit has to show that Jimmy Page and company had access to “Taurus” and came up with a song which is too similar to a song that Spirit had the sole right to perform, record, copy, and modify. Spirit says the three measures of the notes in question from “Taurus”, which last about ten seconds, are too similar to those in “Stairway”, and because Zeppelin and Spirit played on the same bill in the 60s, they must have had access to “Taurus”, and that “Taurus” was the source of “Stairway”.
Dueling musicologists will weigh in on whether the few notes from “Taurus” are really that similar to the opening notes of Stairway. Ultimately, Robert Plants’ “Stairway” lyrics themselves may hint at the answer: “And if you listen very hard, the tune will come to you at last.”
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