Several years
ago I wrote a blog post about Jake Holmes finally suing Led Zeppelin for
copyright infringement of his composition Dazed
and Confused after 41 years (http://tripaldredgelaw.blogspot.com/2010/08/dazd-and-confused-41-years-later.html) I thought that was some kind of record, but
that record has now been broken by Michael Skidmore who has sued Jimmy Page, Robert Plant, and other entities for copyright
infringement claiming that the introduction to Stairway to Heaven infringes upon the late Randy California's song Taurus.
The case just survived a summary
judgment motion and appears headed for a jury trial next month but there are a
number of odd angles to this dispute.
First, it is obviously not Randy
California (real name Randy Craig Wolfe)
bringing the suit nor is it his music publisher. California died in 1991. The suit was filed by the trustee of the
trust established for California's son.
In fact during his lifetime, California was quoted as saying that he had
no interest in suing over the similarities between the two songs: “I’ll let Led
Zeppelin have the beginning of Taurus for
their song without a lawsuit.”
Further, as the suit progresses the
trustee can only sue as the "beneficial owner" of the copyright since
California had assigned his rights to a publisher during his lifetime. The court
determined that the trust is only entitled to recover one-half of any potential
damages. There is actually a good
discussion of the concept of beneficial ownership in the court’s opinion.
In plagiarism cases such as this,
the plaintiffs have to prove not only that the two works are
"substantially similar" but that the defendant had access to the
underlying work.
Access has been defined as “the opportunity to
view a work”. Usually in a case like this where both songs were released by popular
groups (and Spirit was a very popular group in its day) access might be
presumed, so it is interesting that in their summary judgment motion the
defendants spent a lot of time trying to prove that they were not familiar with
California’s song.
This sounds
disingenuous at best and I think that even casual Led Zeppelin collectors know
about a bootleg recording that features the group jamming enthusiastically on
the riff to Spirit's
Fresh Garbage, a
song which like
Taurus is on Spirit’s
debut album. There is interesting testimony about the different festivals that
the bands played together and where they may have met each other so I don't
believe that access could seriously be an issue in this case.
The most disturbing
issue to me is the "substantially similar" claim because while I find
the introductions to both songs to be similar, I do not hear a substantial similarity
here. Obviously this is a battle for expert witnesses and both sides have their
experts. What worries me is that a jury
could gloss over the expert’s testimony and expand upon what the jury did in
the Blurred Lines case and find "compositional
elements" in the recording similarities between the two songs. Yes, the
arrangement of the two compositions and the instrumentation and overall
"feel" of the introductions to the two recordings is similar but to
my mind being influenced by another musician's style or the way they chose to
record a certain passage is not the same thing as infringing upon an underlying
copyright. Also, as copyright lawyers
know, the similar elements of both works may be found to be either generic or
from a common source. While Jimmy Page's
long history of borrowing riffs (or in some cases whole songs) from others is
well documented. I just don't think that in this case the two songs meet the
criteria of being "substantially similar".
It will be interesting to see how
this case plays out but it also worries me that given the fact that the lawsuit
was not even filed by the original creator of the work, we're going to start
seeing more cases like this as other income generators in the music industry
continue to shrink.
I see several potential dangerous precedents on the horizon.
A: A Grateful Dead concert.
