By Bethanie Ramsey
The Ninth Circuit vacated the District Court of California’s judgment on whether the beginning guitar riff of Led Zeppelin’s ‘Stairway to Heaven’ violated the copyright of Spirit’s single ‘Taurus’, and has remanded the case for a new trial.
In 1967, Spirit released their first album which included ‘Taurus’. Led Zeppelin recorded ‘Stairway to Heaven’ sometime between December 1970 and January 1971. In 2006, Michael Skidmore became the trustee of Spirit’s guitarist and songwriter Randy Wolfe’s trust which included the copyright rights to ‘Taurus.’ Although Mr. Skidmore was not a Spirit band member, he does own the ‘Taurus’ copyright. He filed a copyright infringement action against Led Zeppelin in May 2014. The California District Court ruled in favor of Led Zeppelin, reasoning that the songs were “not substantially similar under the extrinsic test.”
Mr. Skidmore appealed to the Ninth Circuit Court of Appeals arguing that the jury was given incorrect instruction on the elements of copyright infringement and that not allowing the song recordings to be played in front of the jury was an abuse of discretion. The court agreed with Mr. Skidmore’s argument that the district court erred when failing to “instruct the jury that selection and arrangement of unprotected musical elements are protectable is [a] reversible error” and in stating that “chromatic scales, arpeggios, and short sequences of three notes” were not protectable. The court also held that the district court abused its discretion by failing to play a “sound recording of ‘Taurus’ for the purpose of demonstrating access.”
In order for a piece of work to be considered copyrightable, the work must be “independently created by the author” and show a “minimal degree of creativity”. Mr. Skidmore must show that Led Zeppelin copied “protected elements of the work.” Although “basic elements of music” and “common rhythms” are not protected, the combination of different musical elements to make a unique “musical expression” is copyrightable. Mr. Skidmore must also show that the infamous chord progression in ‘Stairway to Heaven’ is “substantially similar” to the referenced guitar riff in ‘Taurus’. The jury will have to determine if the two pieces of music are “substantially similar in the ears of ordinary members of the listening audience.”
If the new trial’s ruling goes in favor of Mr. Skidmore, there may be a fear that the result could cause musicians to be afraid to express their creativity and take inspiration from other bands because it may lead to future litigation. This fear may be unwarranted because there is no way of telling if the results of high-profile copyright litigation have had any effect on copyright infringement accusations. This year, the Ninth Circuit ruled on another high-profile copyright infringement case regarding the Robin Thicke and Pharrell Williams song, ‘Blurred Lines’ and the Marvin Gaye song, ‘Got to Give It Up’. In that case, the court ruled in favor of Marvin Gaye, stating that the jury’s verdict that the song ‘Blurred Lines’ infringed on ‘Got to Give It Up’ was valid and was “not against the clear weight of evidence.” There is no way of knowing if copyright infringement accusations have increased since the decision of William v. Gaye, but even if there is an increase in allegations, it does not necessarily mean an increase in copyright litigation. However, if the Led Zeppelin retrial goes in favor of Mr. Skidmore, it may cause musicians to be more careful when creating music to avoid being the center of a high profile case. A favorable outcome for Mr. Skidmore, along with the ruling in favor of Mr. Gaye will show a pattern of how the courts, particularly in the Ninth Circuit, are likely to rule in copyright litigation.
 Dina Regine, Flickr, https://www.flickr.com/photos/divadivadina/465006376/ (last visited Nov. 3, 2018).
 Skidmore v. Led Zeppelin, Nos. 16-56057, 16-56287, 2018 U.S. App. LEXIS 27680, at *44 (9th Cir. Sept. 28, 2018).
 Skidmore v. Led Zeppelin, No. CV 15-3462 RGK (AGRx), 2016 WL 1442461, at *1 (C.D. Cal. Apr. 8, 2016).
 Id. at *1, *2.
 Matt Diehl, Led Zeppelin’s ‘Stairway’ Verdict: Inside the Courtroom on Trial’s Last Day, Rolling Stone (June 23, 2016, 8:41 PM), https://www.rollingstone.com/music/music-news/led-zeppelin-stairway-verdict-inside-the-courtroom-on-trials-last-day-122522/.
 Skidmore, 2016 WL 1442461, at *1, *2.
 Id. at *11.
 Skidmore v. Led Zeppelin, Nos. 16-56057, 16-56287, 2018 U.S. App. LEXIS 27680, at *12, *29 (9th Cir. Sept. 28, 2018).
 Id. at *15.
 Id. at *23.
 Id. at *29.
 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
 Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990).
 Lisa Field, Copyright Infringement And Musical Expression: Creating Specific Jury Instructions For Comparing Music, 38 T. Jefferson 152, 160-61 (2016) (defining protected element of work).
 See generally, Oliver Herzfeld, Spirit v. Led Zeppelin: Analysis Of The “Stairway to Heaven” Infringement Lawsuit, Forbes (May 21, 2014, 1:50 PM), https://www.forbes.com/sites/oliverherzfeld/2014/05/21/spirit-v-led-zeppelin-analysis-of-the-stairway-to-heaven-infringement-lawsuit/#684fa7411aa2.
 Keith Harris, What Happens If Led Zeppelin Lose the ‘Stairway to Heaven’ Trial?, Rolling Stone (June 22, 2016, 5:19 PM), https://www.rollingstone.com/music/music-news/what-happens-if-led-zeppelin-lose-the-stairway-to-heaven-trial-224866/.
 Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).
 Id. at 1127(“[N]early every bar of “Blurred Lines” contains an area of similarity to “Got To Give It Up.”. . . [Experts] testified to multiple other areas of extrinsic similarity including the songs’ signature phrases, hooks, bass melodies, word painting, the placement of the rap and “parlando” sections, and structural similarites on a section and phrasing level.”).
 Harris, supra note 15, at 3.