Stairway To Nowhere: Court Flips Verdict Led Zeppelin’s Favor

I always get nervous when appellate Judges start throwing around terms like “descending chromatic scales.” The underpinnings of music theory are complex, and not easily understood by people who are not musicians. This decision by the Ninth Circuit Court of Appeals shows the problems that can result.

On September 28, 2018, the Court reversed the jury verdict in favor of Led Zeppelin on the controversy of whether the iconic song “Stairway to Heaven” was copied from the song “Taurus” by the band Spirit, and composed by Randy Wolfe. ¹ According to the Court, the District Court made a significant error in its jury instructions that “could have led the jury to believe that even if a series of three notes or a descending chromatic scale were used in combination with other elements in an original manner, it would not warrant copyright protection.” ²

Also:

“[T]he instructions undermined [Plantiff’s] expert testimony that “Taurus” and “Stairway to Heaven” were similar because of the combination of otherwise unprotectable (sic) elements.” ³

I’m afraid those “blurred lines” are about to get blurrier.

The Court is correct that while scales themselves are not copyrightable, they do become copyrightable when they are “arranged or modified in a creative, original way.” The problem is that not all scales work in the same way, and non-musicians may have trouble understanding the concepts.

If you were to play every white note on a piano from C to C, you would play a C major scale. If you were to play every white note on a piano from A to A, you would play an A Minor scale. So even though you would be playing basically the same notes, the harmonic relationship between the notes of the scale is different, leading to a different musical effect.

The chromatic scale is the exception to this rule. No matter where you start, and no matter in which direction you move, the next note is always the note immediately adjacent to it. For example, if you were to play a C major scale you would play C-D-E-F-G-A-B-C. If you were to play a C chromatic scale you would play C-C#-D-D#-E-F-F#-G-G#-A-A#-B-C. In musician’s terms, the next note in the scale is always a half-step away in terms of pitch. On a piano, this is not that easy to play as every white note and black note must be played in sequence, and this doesn’t fall under the fingers very well.

But on a guitar, it’s absolutely the easiest thing to do.

The lowest string on a guitar is tuned to E. Play that string without pressing on any fret, and the note E is sounded. Pressing down the E string on the first fret will play F, do the same on the very next fret up will yield F#, and so on. This is because the guitar is set up in such a way that the next fret on the neck always produces a note that is a half-step away. This is the chromatic scale.

If you’re not a musician, you’re probably confused at this point. Now, imagine you’re a juror and have been tasked with deciding which parts of a descending chromatic scale have been infused with sufficient “originality” as to be copyrightable.

Now consider the fact that the composers of “Taurus” (Randy California) and “Stairway to Heaven” (Jimmy Page) are both guitarists, and the similar portions of the two songs are both played on an acoustic guitar. This vastly increases the chance that the phrases at issue were created independently, because the chromatic scale is so easy to use on the guitar.

When I wrote about this case previously, I provided YouTube links to two songs that sounded a lot more like “Stairway to Heaven” than “Taurus” does. ⁴ Both were played on guitar. And one dated back to the 17^th century.

Back then I wrote:

“[A]ssuming that neither Wolfe or Graham were aware of this 17th century musical composition, and Wolfe was not aware of Graham’s composition, this would mean that three different composers (four if you count Jimmy Page) came up with very similar melodies using arpeggiated chords. This would indicate that the melodies themselves are kind of “stock” motifs that naturally would follow from using standard rules of  European musical theory, and really should receive little, if any, copyright protection.” ⁵

The ruling of the jury was that Page had access to “Taurus,” but the two songs were not objectively substantially similar to each other, and thus there was no infringement. ⁶

I fear that the Court’s reversal on this point, with an accompanying direction that the new jury be instructed on “originality” and “selection and arrangement” of otherwise uncopyrightable elements, is going to confuse the jury and make matters worse. This will encourage the jury to treat all similarities as being the result of copying, rather than being the result of a natural progression, easily accomplished, and according to long standing rules of harmony and theory.

Next up, the Court reverses on the issue of whether the sound recording of “Taurus” should have been played to the jury.

Like the “Blurred Lines” case that preceded this case, the registration deposit copy of “Taurus” was sheet music, not the sound recording. The District Court then ruled that Plaintiffs were limited to what was contained in the sheet music, and the sound recording could not be played. The Plaintiff tried to worm around this restriction saying he wanted to play the sound recording to gauge Jimmy Page’s “reaction” to it and as being probative on the issue of access. The District Court denied this. Page was played the sound recording outside the presence of the jury. ⁷

The Ninth Circuit agreed that the Plaintiff was limited to the music contained in the sheet music. ⁸ But then it rules that since the case is going to be re-tried, the exclusion of the sound recording from the proof of access was an error and should have been allowed. ⁹

This is head scratching for two reasons. First, the jury found that Page had access to “Taurus”! Thus, as the Court notes, this is a “harmless error.” ¹⁰ So, if not playing the sound recording did not impede a finding of access, why order it on retrial? So a jury can find “more access” than necessary to prove a proposition?

Secondly, what possible relevance does hearing a sound recording have with the issue of access? The Court says that the jury should have been allowed to view Page and his “demeanor while listening to the recordings.” ¹¹ Trust me, Honorable Justices, at this point, Jimmy Page has probably listened to “Taurus” a bunch of times. His demeanor isn’t going to change very much.

Sorry. The only reason that the Plaintiff wants to play the sound recording is because it probably sounds a lot more like “Stairway to Heaven” than what is in the sheet music. Telling the jury not to consider the sound recording to judge substantial similarity, as the Court of Appeals suggests ¹² is playing with fire.

You can’t un-hear what you have already heard.

In the “Blurred Lines” opinion, one got the feeling that the Court thought the jury got the verdict wrong, but there was at least some evidence to support it.

In reading the “Stairway to Heaven” opinion, one gets the feeling that the Court thought the jury got it right, but wanted it done better procedurally.

Blurred lines getting blurrier.