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May 21, 2014 | EntertainmentFrom the blogNews

Is Led Zeppelin’s Stairway to Heaven taking a detour to Litigation Purgatory?

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Domenic Romano

Founder & Managing Partner

Shaliz Sadig Romano

Co-Managing Partner

It doesn’t matter when you were born or what kind of music you usually listen to:  chances are you’ve heard Led Zeppelin’s classic, Stairway to Heaven.  The song has earned over half a billion in sales and helped Led Zeppelin IV become one of the highest selling albums of all time.

With such a long history of success, it comes as no surprise that the British heavy metal pioneers are gearing up to re-release the album.  But those plans might be put on hold.  An attorney representing band members of the California band, Spirit, will be filing a copyright infringement lawsuit, seeking both an injunction to prevent the re-release and writing credit for Randy California on the Stairway track. 

Going to California

In the late 60’s, Led Zeppelin opened for Spirit and toured with them on multiple occasions.  Prior to Led Zeppelin’s 1971 album, Spirit had a 2 minute song called Taurus. Stairway happens to have a very similar instrumental sound to Taurus (you can listen to the links and decide for yourself).

According to Bloomberg Businessweek, even though Randy California, Spirit’s guitarist, knew of the similarity, called it “a ripoff” and a “sore point with [him]” in a 1997 Listener magazine interview, he never took any action.  California died in 1997.  Claiming they didn’t have money and thinking it was too late, his estate never brought legal action … until now.  Armed with an attorney reportedly working on contingency, Mark Andes and the trust that handles Randy California’s royalties, are ready to take the copyright matter to court.

The Battle of Evermore

Copyright Infringement, generally, amounts to the reproduction, distribution, performance, public display, or making of a derivative work out of a copyrighted work, without the permission of the copyright holder.

In general, the statute of limitations on a civil copyright claim is three years.  However, the clock starts fresh with each new alleged infringement, including the release of an album or new digital download.  With the constant adapting of new media and frequent re-releasing of copyrighted work in new forms, the three year limit has essentially become perpetual.  Each new release opens the door for a new copyright infringement claim with a new three year window.

There are basically 2 main issues to address in a copyright infringement case: (i) the plaintiff (person bringing the suit) has a valid copyright in the work, and (ii) there was copying of the original aspects of the work.  Typically, the infringement cases focus on the second element and two questions:

(1)    Whether the defendant actually copied the plaintiff’s original work (shown by defendant’s access to the work and any substantial similarity of the two works); and

(2)    If the copying was an improper appropriation.

It doesn’t matter if the copying was accidental or unintentional.  In Bright Tunes Music v. Harrisongs Music, George Harrison was found liable for copyright infringement of Ronald Mack’s He’s So Fine in Harrison’s song My Sweet Lord.  The court held that Harrison had access to He’s So Fine and unconsciously copied the work.

When the Levee Breaks”

Jimmy Page and Robert Plant of Led Zeppelin were influenced by many genres and artists, as are many performers.  However the band has been in more than one copyright rumble in the past.  The disputes have mostly been settled out of court, with Zeppelin sharing royalties on certain tracks and giving writing credit to more than one other musician.

In a recent dispute in 2010, Jake Holmes sued Page for infringement of Holmes’ Dazed and Confused by Zeppelin’s song with the same title.  The parties settled out of court and credited Dazed and Confused as “Jimmy Page inspired by Jake Holmes” on all future releases of the Celebration Day album.

If this Stairway suit goes to court, attorneys for Page and Plant may argue, like they did in the Holmes dispute, that there was no infringement or that the underlying material was not original enough to be protected by copyright.  In an attempt to use a Fair Use defense, they could also argue that while a portion of Taurus was copied (and clearly, there was access), Zeppelin transformed the track substantially into a wholly different work.  According to Bloomberg:

In “When Giants Walked the Earth: A Biography of Led Zeppelin,” Mick Wall details the Welsh genesis of the song and writes that if Page was influenced by the chords from Taurus, “what he did with them was the equivalent of taking the wood from a garden shed and building it into a cathedral.”

If the past is any indication, this issue will likely be resolved privately with an out of court settlement … and you may see new writing credit on the re-released album and the Stairway track.

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