The Zep vs Randy California “Stairway” case reminds potential plaintiffs they can invest time and money in a lawsuit and still lose.

by Carole McNall

Classic rock fans, you can relax now.

Jimmy Page and Robert Plant are indeed the writers of the rock classic, “Stairway to Heaven.” A federal court jury ruled June 23 the estate of Randy Wolfe had not proven its argument Wolfe was the original creator of “Stairway’s” most memorable guitar riff.

“We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years,” Page and Plant said after the verdict. Wolfe’s attorney said he lost on a “technicality” and is considering an appeal.

This case, more than many rock copyright fights, had enough tangles to be worthy of a law school “spot the issues” question. I’ll untangle a few of them for you.

Who is this guy who’s claiming he wrote “Stairway?” The claim comes from the estate of Randy Wolfe, known as Randy California when he played with the band Spirit. Wolfe’s estate said “Stairway” steals a guitar riff from Wolfe’s composition “Taurus.” “Taurus” was written in 1968, “Stairway” in 1971.

If you’re a rock scholar, you might remember that Wolfe drowned in 1997. How could anyone be suing to protect copyright rights for a creator who’s no longer alive? The answer lies in copyright law, which gives protection to a creator’s rights for 70 years after his or her death. Wolfe’s copyrights are controlled by a trust formed after his death; Michael Skidmore, the trustee, was the plaintiff in the case.

Led Zeppelin’s defense attorneys argued Wolfe never had a valid copyright in “Taurus.” The jury rejected that claim.

So what does infringement mean? And what did the plaintiff have to prove? Infringement means using someone’s copyrighted work without permission and without falling under any of the exceptions to the law. To prove infringement, a plaintiff has to show he had a valid copyright, the defendant could have heard the original work (in the case of music) and the two works are substantially similar.

Wolfe’s estate won on two of the three points, but lost on the big one: substantial similarity. Led Zeppelin had opened for Spirit at some shows in 1968. Page and Plant denied they’d heard “Taurus,” but the jury rejected that claim.

But the jury found Led Zeppelin didn’t use anything unique or original from “Taurus.” The defense argued the chord progression at the center of the fight appears in many other songs and the jury accepted that argument.

But 45 years before the suit was filed? Is that even legal? Reports on the case aren’t clear why the suit didn’t happen far earlier. One Chicago Tribune article suggests Wolfe may not have had the money to hire a lawyer. Other reports quote Wolfe as being originally accepting of the similarity. Near the end of his life, however, he told an interviewer, “The guys made millions of bucks on it and never said, ‘Thank you,’ never said, ‘Can we pay you some money for it?’ It’s kind of a sore spot with me.”

Skidmore, the trustee, said he felt obligated to sue after a 2014 Supreme Court decision. That ruling said a copyright owner could sue even decades later if the suit was filed within three years of an infringement. “Stairway” is still being played and sold; it was easy to argue this suit met that requirement.

Did they think about settlement? Probably yes. Most copyright infringement suits do settle, often for an amount of money not made public. But the Wolfe estate had asked for something that’s not unusual, but was a non-starter for Page and Plant. The estate sought songwriter credit for Wolfe, which would also have meant royalties from “Stairway” going forward. Led Zeppelin’s two best-known members rejected that idea.

In April, defense attorneys asked the judge to grant summary judgment, a ruling that would have said even if Wolfe’s estate was right on the facts, the defense was entitled to win on the law. The judge rejected that motion, ruling the question of substantial similarity should go before a jury.

Did the jury hear the Spirit and Led Zeppelin recordings? No. That might have made a difference. I’ve played both songs in class; I think hearing both might have shifted the decision for at least some jurors.

Bloomberg News quotes one lawyer who agrees with my thought: “If you just put an average person down and played the pertinent portion of each song, they’d be struck by it, but that’s not what they heard.” So why did the jury hear only live versions or recordings made for the trial?

That answer lies in the age of the songs and the copyright law they are protected under. Copyright law’s last major revision happened in 1976. Before that, protection was provided under a 1909 statute. The 1909 law didn’t protect sound recordings — no surprise, since they barely existed at the time.

Notice when each song was written. Both predate the 1976 revision. Because of that, the judge ruled the only copyright that could be disputed was the sheet music for the two songs. This appears to be the “technicality” complained of by the estate’s lawyer. I’m not sure I’d build an appeal around that point.

In a case involving two post-1976 songs, it might be easier to get sound recordings into evidence.

Will this impact other potential plaintiffs? Maybe. Part of the music industry began stressing a year ago, when a California jury ruled that Robin Thicke’s “Blurred Lines” infringed the copyright held in Marvin Gaye’s “Got to Give It Up.” The aftermath of that case, now being appealed, was an increase in copyright suits, including suits against high-visibility defendants like Kanye West and Justin Bieber.

But the “Stairway” case reminds potential plaintiffs they can invest time and money in a lawsuit and still lose. (And potentially be liable for the defendant’s legal costs, something that may happen in this case.) After the “Stairway” case, one attorney observed, “This sends the right message that you need to be cautious and it’s not going to be a dance through the rose garden.” Or, for that matter, a “Stairway” to a large jury verdict.

Carole McNall, a lawyer, teaches media and internet law at St. Bonaventure University.