The Ninth Circuit Court of Appeals issued an opinion affirming that Led Zeppelin’s 1971 song Stairway to Heaven did not infringe on the copyright of the 1968 song Taurus because they were not substantially similar. The court, ruling en banc, rejected the long-standing “inverse ratio” rule that had been in use in the Ninth Circuit for decades. In the long-running copyright suit, plaintiff Michel Skidmore alleged that the “opening notes of Stairway to Heaven infringed Taurus, a song written by guitarist Randy Wolfe and performed by his band Spirit.”
The court first determined that the 1909 Copyright Act applies to the song in this case, as opposed to the more recent 1976 Copyright Act. This is because Taurus was written and registered with the copyright office in 1967. Unlike the more recent Copyright Act, the 1909 law requires that “the scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of Taurus consisted of only one page of music.” The court thus held that the district court was correct in refusing to play sound recordings of Taurus.
Skidmore alleged “direct, contributory, and vicarious copyright infringement. He also sought equitable relief for a claim that he titled ‘Right of Attribution – Equitable Relief – Falsification of Rock n’ Roll History.’ …Skidmore claims that the opening notes of Stairway to Heaven are substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy.” However, while both contain a descending chromatic musical scale, Zeppelin’s is in A minor and it has a “different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios, which are not present in Taurus.” Led Zeppelin claimed that it did not infringe, it also “disputed ownership, access, and substantial similarity. Led Zeppelin also alleged affirmative defenses, including independent creation, unclean hands and laches.”
Skidmore argued that the district court erred in its instructions delivered to the jury. First, he objected to the lack of an instruction on the “inverse ratio” rule, which states that “a lower standard of proof of substantial similarity [applies] when a high degree of access is shown.” The appeals court explained that the circuits are split as to this rule and that the Ninth Circuit had retained the rule but struggled with the scope and nature of its applicability for decades. In finally rejecting the rule, the court held that “Although we are cautious in overruling precedent—as we should be—the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.”
Skidmore also objected to the jury instructions as to the standard of originality. He and his music expert argued that the “five musical elements in combination were copied because these elements make Taurus unique and memorable, and these elements also appear in Stairway to Heaven. Led Zeppelin’s music expert argued that the musical works are distinct and different, stating the “similarities claimed by Skidmore either involve unprotectable common musical elements or are random.” For example, the similarity in the three two-note phrases is not applicable because they “were preceded and followed by different notes to form distinct melodies.”
An intrinsic and extrinsic test was used to determine substantial similarity. The court held that common musical elements, such as “descending chromatic scales, arpeggios or short sequence of three notes” are not protected by copyright because they are musical building blocks that no one can own.
Finally, Skidmore objected to the lack of a jury instruction as to selection and arrangement of the work. The court countered that Skidmore failed to raise the issue below and thus could not raise the objection on an appeal. In a concurring opinion, Circuit Judge Watford stated, “Given the thin protection afforded the selection and arrangement of basic musical elements at issue here, Skidmore could prove infringement only if the relevant passages of Taurus and Stairway to Heaven are virtually identical. They are not. Undeniable and obvious differences exist between the first four measures of both songs…”