The “Stairway to Heaven” trial is making a strong push to go down in the annals of copyright history. Not because of the June 23 jury verdict that determined that Led Zeppelin was not liable for infringing Spirit‘s instrumental “Taurus,” but rather because of how the U.S. Supreme Court shaped the trajectory of this case.
Without a May 19, 2014 high court opinion in a dispute over Raging Bull rights, Led Zeppelin might never have had to go to trial in the first place. “Stairway to Heaven” was created decades ago, and under the old rules, Jimmy Page‘s band may have argued that the copyright lawsuit constituted an unfair prejudicial delay. The Supreme Court, though, ripped apart that affirmative defense two years ago.
Although Led Zeppelin and its song publisher Warner/Chappell had to then show up in a California federal courtroom to defend claims from a beneficiary of the “Taurus” copyright, a more recent Supreme Court decision will also factor. A June 16 high court opinion directed lower judges to consider awarding attorneys’ fees to prevailing parties in copyright cases by examining factors like “frivolousness, motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.”
The “Stairway to Heaven” case could thus become the earliest and best example of how trial judges are applying two major copyright decisions.
With that backdrop, Warner/Chappell is now demanding $613,471 in attorneys’ fees, plus costs like expert witness fees and trial transcripts that would make the total tab nearly $800,000 for Michael Skidmore, the losing party.
According to a memorandum in support of an attorneys’ fee award (read here), the plaintiff asserted “nearly half-century-old claims that neither Randy Wolfe nor the owner of the allegedly-infringed copyright ever bothered to assert because any similarity between Taurus and Stairway to Heaven results from the use of a centuries-old, public domain descending chromatic line.”
The music publisher takes issue with the way plaintiff “tried to tar Stairway to Heaven and its authors, Jimmy Page and Robert Plant” and says it “successfully defended plaintiff’s attempt to wipe Stairway to Heaven off the map and, in doing so, defendants furthered the important copyright purpose of enriching the general public through access to creative works.”
U.S. District Judge R. Gary Klausner is told about the lack of merit in plaintiff’s claims from the way in which the case was first filed in Pennsylvania despite no connection there to the way in which the plaintiff aimed “to sully the reputations of” Page and Plant by listing “purported instances of prior settlements or potential-but-never-asserted copyright infringement claims.”
But Warner/Chappell emphasizes that the Supreme Court issued guidance that judges should go beyond analyzing whether the losing party had an objectively reasonable position to take into consideration other factors. And the one in particular that is being seized upon here is recently suspended plaintiff attorney Francis Malofiy’s conduct in this “Stairway to Heaven” case. Resistance to discovery, ignoring pre-trial rulings barring certain evidence, misrepresenting evidence at trial, and purporting to issue “notices” to Page and Plant to appear at trial are just some of the alleged ways that the plaintiff attorney misbehaved. There’s also the cited instance of Malofiy standing before media cameras on the courthouse steps and in a claimed attempt to prejudice the jury pool, the attorney stated, “If money is won in this case, it’s to be used to buy musical instruments for children who are in need in Ventura County.”
The job of arguing against all of this at a scheduled Aug. 8 hearing could go to plaintiff’s local counsel Glen Kulik.
It’s not certain yet who will be taking up Skidmore’s appeal that’s expected to be premised on the issue of whether the judge should have allowed certain “Taurus” sound recordings to be heard by the jury. Although appeals courts don’t often overturn trial verdicts on evidentiary grounds, there could be ample fodder for a higher authority to analyze. (For background, see these arguments made before the “Blurred Lines” case went to trial.) That said, although the Supreme Court has impacted the case twice, maybe don’t bet just yet on a third time where Led Zeppelin really does take a judicial stairway all the way up.
This article was originally published by The Hollywood Reporter.