Stairway to Bad Precedent

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.

Dazed and Confused, 41 Years Later

This is one of the great mysteries of all time to music nerds and copyright lawyers (I am guilty of being both) – why did Jake Holmes wait so long (41 years!) to sue Jimmy Page for copyright infringement? Specifically, on June 28 of this year, Holmes sued James Patrick Page, Super Hype Publishing, Inc., Atlantic Records, and others for copyright infringement claiming that Led Zeppelin’s song “Dazed and Confused” infringed upon Holmes’ song of the same title. Of course it did. It is the same song. Jake Holmes’ song is on i-Tunes if you want to hear the evidence.

By now, most music fans have heard the story of how Jake Holmes’ band opened for the Yardbirds (Page’s former band) at a 1967 New York show. Impressed by the artist’s performance, Jimmy Page and Jim McCarty purchased a copy of Jake Holmes’ record The Above Ground Sound of Jake Holmes the next day. They soon worked the song “Dazed and Confused” into their act. Page debuted his famous violin bowed guitar during the middle of the song. In fact, The Yardbirds recorded a live version of the song as “I’m Confused.”

Why did Holmes wait this long to take action? Willie Dixon was on the case early, suing for “Whole Lotta Love” infringing “You Need Love.” See this link” for a list of Jimmy Page’s “influences.” By waiting 41 years to file suit, Holmes is barred by the statute of limitations from collecting damages for the first 38 years of the song’s existence. I am sure that one of Page’s defenses will be laches – the allegation that the plaintiff “slept on” his rights.

Perhaps an answer could be found in a quote I came across in an old issue of Shindig! Magazine. Holmes is quoted as saying that he became aware of the song:

“as soon as it came out, and stupidly, I never followed up on it. In the early 1980’s, I did write them a letter, and I said basically: I understand it’s a collaborative effort, but I think you should give me some credit at least and some remuneration, but they never contacted me.” ( I wonder if Page’s attorneys will sieze upon the phrase “ collaborative effort”. I would).

If this case does not settle, it will be interesting to see how it plays out.