inverse ratio – Techdirt (original) (raw)

9th Circuit Gets It Right: Says Led Zeppelin Didn't Infringe; Dumps Dumb 'Inverse Ratio' Rule

from the good-to-see dept

I will admit to being worried, when the 9th Circuit originally agreed to reopen the long running copyright dispute between the estate of Randy Wolfe (aka Randy California) of the band Spirit, and Led Zeppelin. At issue was whether or not the classic Zepplin song “Stairway to Heaven” infringed on the Spirit song Taurus. As we noted, there are some similarities between the two songs… but they also have similarities to other songs in history, including Dido’s Lament from the 17th century and Bach’s Bourree from the 18th century and a bunch of other songs.

Thankfully, a jury, and then the 9th Circuit, both sided with Led Zeppelin originally, claiming no infringement. But, then the 9th Circuit vacated the earlier decision and re-opened the issue. We had a pair of excellent blog posts by copyright lawyer Rick Sanders highlighting why there were good reasons to revisit the case, noting some real mistakes made during the original trial and also the very, very messed up “inverse-ratio” test used by the 9th Circuit in determining if songs were infringing. As that post noted, the 9th Circuit has long used a very confusing (and legally nonsensical) “test” for whether or not one song is infringing on another. Without going too deep into the weeds, the 9th Circuit basically said the more similar works were, the less you needed to do to prove “access” to the original work. As that link above shows, this can lead to some very significant problems in copyright cases (I recommend reading that link so I don’t need to redo it).

A second question that the court was asked to review — is whether or not juries should be able to hear the recordings. This was super important, because if you were to just listen to the two songs, you might hear the fact that they are, indeed, similar. But, since not everything in the recorded version is protectable (and at the time the songs were written, the federal copyright only covered the composition, but not the recording), allowing the jury to make decisions based on the recording would have been a problem. It’s very difficult, upon just listening, to understand which parts are protected by copyright and which are not.

Perhaps surprisingly, the 9th Circuit has now appeared to do a pretty decent job in its latest ruling on the case. The key points: “Stairway” did not infringe, juries shouldn’t hear the misleading sound recording, and the “inverse ratio” rule is no longer the right one to use in the 9th Circuit. Hooray.

We’ll go through a few key points in the decision. First, the representative of the Wolfe estate, Michael Skidmore (after whom the case is named), argued that the deposit copy of the sheet music for “Taurus” was not the full scope of the copyright in the song, but rather a sort of “reference” to the actual song. The court says that’s not how any of this works:

Skidmore suggests that the copyright extends beyond the sheet music; that is, the deposit copy is somehow archival in nature and more of a reference point than a definitive filing. This approach ignores the text of the statute and the purpose of the deposit.

We have outlined copyright protection under the 1909 Act as follows: ?[A]n unpublished work was protected by state common law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme.? ABKCO, 217 F.3d at 688 (quoting LaCienega Music Co. v. ZZ Top, 53 F.3d 950, 952 (9th Cir. 1995)). The referenced federal copyright protection for unpublished works is found in the text of the statute: ?copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a . . . musical composition . . . .? …

The text is clear?for unpublished works, the author must deposit one complete copy of such work. The purpose of the deposit is to make a record of the claimed copyright, provide notice to third parties, and prevent confusion about the scope of the copyright.

A bunch of other theories that Skidmore tossed at the wall to argue that the deposit copy wasn’t the full description of the work all flop as well:

Skidmore also complains that restricting protection to the deposit copy disadvantages musicians who do not read music because it can be time consuming and expensive to make an accurate deposit copy. Apparently, that was not a problem here, as Wolfe?s work was transcribed for the sheet music deposit. Digital transcription and other technological advances undercut this argument, not to mention that for decades now, sound recordings have been accepted as the deposit copy. Finally, Skidmore offers conjecture about what might happen if a deposit copy were lost or destroyed. We need not play this ?what if? guessing game because the statute is clear and unambiguous.

On the question of playing the recording to the jury, the court again finds (correctly) that the unprotectable or non-protected elements might influence the jury too much:

To prevent the jury from making an erroneous comparison for determining substantial similarity, the court properly excluded the sound recording, which contains performance elements that are not protected by the Taurus deposit copy. Indeed, the court?s exclusion ruling displayed a clear understanding of the distinct components of copying and unlawful appropriation, letting the evidence in ?as far as access,? but ?not . . . to compare the performance? to Stairway to Heaven.

What was notable here is that Skidmore/Wolfe Estate tried to sneak the recording into the proceedings by arguing that they needed to play it to show that Led Zeppelin had access to the song, not to show “substantial similarity.” To show infringement (as discussed in the link above), the estate needed to show both access and substantial similarity. Yet, here the court points out that the estate didn’t even need to prove access, because Jimmy Page flat out admitted to having the album in question, and thus there’s not even a reason to play the song to establish access.

In any event, the evidentiary question is moot. It turns out Skidmore?s examination of Page on access proved fruitful. When Page testified, he candidly admitted to owning ?a copy of the album that contains ?Taurus,? . . . in [his] collection,? though still denying ?any knowledge of ?Taurus.?? The jury found that both Page and Plant ?had access to the musical composition Taurus before Stairway to Heaven was created.? Once the jury made that finding, the remaining questions on the jury verdict form related to substantial similarity of the works.

Then there was the issue of the “inverse ratio” rule as discussed above. There are all sorts of problems with the inverse ratio rule, but the Wolfe Estate complained that it should have been used in the jury instructions. Thankfully, here, the 9th Circuit effectively stabs the inverse ratio rule dead. And, they stomp all over it in the process.

Skidmore proposed an inverse ratio rule instruction, but the court chose not to give the instruction. The court reaffirmed this decision when Skidmore raised the question again after the close of testimony: ?We?re not going to give that instruction.? Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.

The court then goes through a decently long history of times that the 9th Circuit’s use of the inverse ratio rule was a complete and utter mess, before summarizing:

The flaws in the rule can be seen in the inconsistent ways in which we have applied the rule within our circuit, the logic of the circuits that have rejected the rule, and analysis by academics and commentators. See id. (?There is nothing positive that can be said about a rule that lacks any clarity at all: trying to get a jury to both understand the rule and apply it properly is totally impossible.?).

As a practical matter, the concept of ?access? is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work. See Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand. See Brooks Barnes, The Streaming Era Has Finally Arrived. Everything Is About to Change., N.Y. Times, Nov. 18, 2019 (In addition to Netflix, which ?entertain[s] more than 158 million subscribers worldwide,? there are currently ?271 online video services available in the United States?).

To the extent ?access? still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. Thus the rule benefits those with highly popular works, like The Office, which are also highly accessible. But nothing in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.

Finally, the inverse ratio rule improperly dictates how the jury should reach its decision. The burden of proof in a civil case is preponderance of the evidence. Yet this judge-made rule could fittingly be called the ?inverse burden rule.?

And thus, finally (and happily) say goodbye to the inverse ratio rule.

Next, the court discusses a jury instruction that reminded the jury that not everything in a song is protectable by copyright. The Wolfe Estate whined that the jury instructions put too much emphasis on what couldn’t be covered by copyright — telling the jury that copyright “does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.” The Wolfe estate was upset that this accurate statement might lead the jury into properly recognizing that the protectable elements in Taurus were not copied in Stairway. The court is not impressed.

Skidmore objects to the list of unprotectable elements. In particular, he argues that characterizing the ?descending chromatic scales, arpeggios or short sequence of three notes? as examples of ?common musical elements? was prejudicial to him.

To put this instruction in context, it is useful to outline the essence of the ?common musical elements? or building blocks. The chromatic scale is one of two principal scales in Western music. It consists of twelve pitches separated by a half-step. On a piano, this means playing the white and black keys in order from left to right. Three or more notes or pitches sounded simultaneously are called chords, and an arpeggio, sometimes called a broken chord, is ?[a] chord whose pitches are sounded successively, . . . rather than simultaneously.?…

To conduct a copyright infringement analysis, the factfinders ask ?whether ?the protectible elements, standing alone, are substantially similar?? and ?disregard the non-protectible elements.?… Jury Instruction No. 16 correctly listed non-protectable musical building blocks that no individual may own, and did not, as Skidmore claims, exclude the particular use of musical elements in an original expression.

For example, despite Skidmore?s challenge to the characterization of descending chromatic scales as unprotectable, even his own expert musicologist, Dr. Stewart, agreed musical concepts like the minor chromatic line and the associated chords have been ?used in music for quite a long time? as ?building blocks.? This candid acknowledgement was echoed by Led Zeppelin?s expert. Dr. Ferrara described the ?chromatic scale, descending or ascending,? as ?a musical building block. This is something that no one can possibly own.? The commonality of descending scales and arpeggios has been reinforced by the Copyright Office, which lists ?[d]iatonic or chromatic scales? and ?arpeggios? as common property musical material….

Indeed, the court reinforces that this is not a new concept at all.

We have never extended copyright protection to just a few notes. Instead we have held that ?a four-note sequence common in the music field? is not the copyrightable expression in a song.

There’s some more useful language in the ruling concerning what is copyrightable subject matter within a song:

Skidmore appears to want less than the law demands. In his closing and on appeal, he argued that a work is original as long as it was independently created. Not quite. Though not demanding, originality requires at least ?minimal? or ?slight? creativity?a ?modicum? of ?creative spark??in addition to independent creation.

There are some additional, mostly procedural bits in the case, but overall this is a good and useful ruling. And, once again, it shows that Stairway to Heaven does not infringe on whatever copyright there might be in Taurus.

Filed Under: 9th circuit, copyright, inverse ratio, led zeppelin, michael skidmore, randy california, randy wolfe, stairway to heaven, substantial similarity, taurus

from the a-mess,-a-mess,-a-mess dept

Almost exactly three years ago, we were pleasantly surprised to find that a jury unanimously ruled that Led Zeppelin did not infringe on a song by the band Taurus called “Spirit” with “Stairway to Heaven.” We noted that, similar to the Blurred Lines case, if you just listen to bits and pieces of each song, you can hear a similarity, but that does not, and should not, mean it was infringing. As we’ve pointed out, while Stairway and Taurus can sound similar:

… the same is true of Stairway, Taurus… and J.S. Bach’s Bouree In E Minor, which you’d better believe is in the public domain:

Given all that, we were disappointed last fall when the 9th Circuit suddenly vacated the jury’s decision and ordered a new trial, claiming that the jury instructions in the original were incorrect. However, as copyright lawyer, Rick Sanders explained, there were potentially some positives to come out of this, such as some very good reasons for this decision, including that it might fix the 9th Circuit’s insanely ridiculous legal framework for determining if there is infringement. Also, there were some very real problems with the jury instructions.

However, before the case did go back for a second trial, that decision was appealed, and now the 9th Circuit has agreed to hear the issue en banc (with an 11-judge slate). It looks like there are a number of potentially important issues that the court will get a chance to dig into when it hears the case this fall. The guy who runs the estate of the guy who wrote “Taurus” wants the court to determine whether or not the specific sheet music that is deposited with the copyright lays out the full scope of what is covered (under the 1909 Copyright Act, which applied when the song was written), and also suggests that the court needs to consider the “dire consequences” of its decision “including the seismic disenfranchisement of almost all” musicians of pre-1978 music (which, uh, is quite a bit of hyperbole). Meanwhile, Zeppelin admits that there were some problems with the original jury instructions (though, not as much as the other side claims), but says that it wouldn’t have made a difference and that the plaintiff “invited and waived” the mistake in the first place.

However, as Rick Sanders noted in his pieces, Zeppelin’s lawyers also ask the 9th Circuit to toss out the weird “inverse ratio rule” legal framework that the 9th Circuit uses in determining infringement (to understand that weird rule, go back and read this piece).

Of course, this is the 9th Circuit we’re talking about, and it has a way of getting copyright law completely screwed up all too frequently. So while it has a chance to do something good, it could also muck things up, and this particular court is especially good at mucking up copyright law.

Filed Under: copyright, inverse ratio, led zeppelin, spirit, stairway to heaven, taurus

Stairway To Heaven Is Not Blurred Lines

from the getting-something-right dept

A few weeks ago, we wrote about the 9th Circuit overturning the district court’s ruling in a copyright case questioning whether the song “Stairway to Heaven” had infringed on the song “Taurus” by Spirit. We were less than pleased with this result, as we felt the original ruling was correct. Copyright lawyer Rick Sanders disagreed with part of our analysis and made some really great points in a two part blog post series, which he’s graciously allowed us to repost in slightly edited form here. Part II will be published tomorrow.

Yes, the new 9th Circuit surprising reversal of the jury verdict looks like “Blurred Lines” all over again — only in reverse. Whereas in “Blurred Lines,” the jury reached the “wrong” conclusion, and the Ninth Circuit refused to fix the jury’s mistake, here it looks like the jury reached the “right” conclusion,” and the Ninth Circuit is screwing up the jury’s work. Techdirt all but said so, in an article 9th Cir Never Misses a Chance to Mess Up Copyright Law: Reopens Led Zeppelin ‘Stairway to Heaven’ Case.

I’m pleased to report that, far from taking this opportunity to further screw up copyright law, as Techdirt fears, the panel of judges is attempting to improve copyright law by replacing the Ninth Circuit’s (very bad) framework for copyright infringement with a much better one. Indeed, the “Stairway to Heaven” opinion may be seen as a rebuke to the “Blurred Lines” opinion. The pity is that Led Zeppelin must bear this burden by having to do the trial all over again.

The reason the “Stairway to Heaven” has to do with our old, misunderstood frenemy, the “Inverse-Ratio rule,” which is only tangentially related to why the case is being sent back for a second trial. I blogged extensively about the “inverse-ratio” rule in connection with the “Blurred Lines” case, and how the Ninth Circuit (correctly) amended its opinion to excise (its terrible) discussion of the rule. But here’s the deal: the inverse-ratio rule provides that the more similarity there is between the two works, the less proof of access you need, and vice-versa. It is highly beneficial when applied to the right legal framework for copyright. It is a perverse disaster when applied to the wrong legal framework.

Generally, there are two leading legal frameworks for determining when someone has infringed copyright:

  1. Plaintiff must prove (a) defendant’s access to the copyrighted work, plus (b) “substantial similarity” between the two works. This framework is used by the majority of courts, so we’ll call it the “Majority Framework.” It is also a bad framework.
  2. Plaintiff must prove (a) “copying” and (b) “unlawful appropriation.” To prove “copying,” the plaintiff must prove (1) access and (2) “probative similarity.” “Unlawful appropriation” is pretty much the same thing as “substantial similarity,” but the different term is used to avoid confusion with “probative similarity” (and is also more accurate). This framework is preferred by scholars and is used by one half of the Second Circuit, so we’ll call this the “Preferred Framework.”

Both of these frameworks grapple with the same thing: to infringe copyright in a work, the defendant must both copy the work and take enough of the work that, well, um, it’s too much. But the key is that copying is something that must be proved. In theory, if a magical monkey banged out Harry Potter and the Chamber of Secrets without ever have looked at a copy of Harry Potter and the Chamber of Secrets, that would not be copyright infringement. It would just be unbelievably unlikely. The need to prove copying is actually a fairly important limitation on copyright law. We shouldn’t lose sight of it.

Imagine that you saw me with a book and that I was writing something down on a pad of paper while obviously reading the book. Have you proved that I have “copied” the book? You certainly have proved access: there I am, with the book in hand! But, you haven’t. You need one piece of evidence. You need to see what I am writing. It’s possible that I’m multitasking, perhaps writing a shopping list as I read. It would take just a glance to figure that out, though, right?

Now imagine that you didn’t see me with the book. No one did. And yet my notebook is word for word the same as the book. Do you need any evidence of access? Maybe just the slightest bit, like I live in the same city as a bookstore or library that has a copy of the book. (This is sometimes known as “striking similarity.”)

Does this make intuitive sense? If so, congratulations! You understand the “inverse-ratio” rule, at least when correctly applied to “copying.” The more access, less probative similarity is needed to prove copying. More probative similarity, less access needed.

Proving copying is only step one of a two-step process, so let me hit you with another hypothetical. Let’s say that I was seen with the book at some point, and my notebook contains an extensive data table that is exactly the same as a data table in the book (but in my handwriting). There is nothing else in my notebook related to the book. The data table is otherwise unremarkable. Have you proven infringement? No! You have proven copying. I had access to the book, and the data table is too much of a coincidence to explain away. Clearly, I copied the data table. But not all copying is infringement. What I took isn’t protectable because it’s just facts. You haven’t proven the “unlawful appropriation” (AKA “substantial similarity”) element.

This hypothetical shows the difference between the two kinds of similarity: probative and substantial. (See, this is why we should re-name “substantial similarity” as “unlawful appropriation.”) You can use unprotectable elements to establish probative similarity. You can’t use unprotectable elements to establish substantial similarity/unlawful appropriation. Hopefully, this makes intuitive sense to you. With probative similarity, we’re just trying to prove copying, so we’re just looking for coincidences that, in light of the amount of access, we can’t explain away. Substantial similarity/unlawful appropriation is limited to protectable expression.

Let’s return to the “inverse-ratio” rule. Can you see why it’s appropriate in the context of copying, when we’re weighing access against probative similarity? And why it’s inappropriate if you are instead weighing access against substantial similarity/unlawful appropriation? In fact, it’s perverse. Imagine if you and I both took the same material from an unpublished manuscript, and that the case for substantial similarity is kind of borderline. I am found with a copy of the manuscript on my computer. You, however, have no connection with the manuscript except that you are the manuscript editor’s niece’s best friend (and the niece visited the editor at least once while in possession of the manuscript). We both took the same thing, but under the misapplication of the inverse-ratio rule, I’m an infringer, and you are not. That’s stupid. Considering that most courts do not correctly handle the distinction between copying and substantial similarity, you can see how the inverse-ratio rule has gotten a bad rap.

Which of these two frameworks does the Ninth Circuit use? Neither, of course. This is the Ninth Circuit we’re talking about. Its framework looks like a combination of two. On the one hand, it follows the Majority Framework by requiring proof of access (instead of copying) and “substantial similarity.” But then is splits the inquiry into “substantial similarity” into two tests, both of which must be proven: the “extrinsic test” and the “intrinsic test.” The extrinsic test is meant to be “objective.” The jury is permitted to consider both protectable and non-protectable elements, to dissect the elements and compare those, and to consider expert opinion. You know what that is? Probative similarity, but here’s it’s pressed into the service of substantial similarity and has been separated from the inquiry into access.

The intrinsic test is just the normal test for “substantial similarity”/”unlawful appropriation” that every other court uses. Calling it a “test” is overstating it: it’s more like the jury’s gut instinct, based on the “total concept and feel” of the works. Sorry, but no one has come up with a better way of formulating the test, or how “total concept and feel” works when both protectable and non-protectable elements have been taken. To be fair to the Ninth Circuit, the distinction between intrinsic and extrinsic evidence was innovative at the time and served as an important stepping stone to the preferred legal framework. Alas, the way precedent works, the Ninth Circuit has been stuck at this half-way point for decades. It should go without saying that the application of the “inverse-square” rule to the Ninth Circuit’s framework can be ugly.

But that’s what makes the court’s opinion in the “Stairway to Heaven” case so exciting. The court straight up endorses the Preferred Framework, even using the preferred terminology:

Whether Defendants copied protected expression contains two separate and distinct components: “copying” and “unlawful appropriation.” A plaintiff must be able to demonstrate that a defendant copied his work, as independent creation is a complete defense to copyright infringement. In cases such as this one where there is no direct evidence of copying, the plaintiff can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying. When a high degree of access is shown, a lower amount of similarity is needed to prove copying. To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff’s work. They just need to be similarities one would not expect to arise if the two works had been created independently.

It then tackles the plaintiffs’ argument about the missing “inverse-ratio” rule. I’ll bet the plaintiffs were wanting an “inverse-ratio” instruction that told the jury to weigh access against substantial similarity. If so, the Ninth Circuit had some bad news for it: the “inverse-ratio” applies only to copying, not to substantial similarity.

This [inverse ratio] rule assists only in proving copying, not in proving unlawful appropriation. Even if a plaintiff proves that a defendant copied his work, the plaintiff must still show that the copying amounts to unlawful appropriation. The showing of substantial similarity necessary to prove unlawful appropriation does not vary with the degree of access the plaintiff has shown.

The court then went on to suggest strongly to the trial court that an “inverse ratio” rule might be a really good idea, in a case where there’s proof of access.

But what about that intrinsic-extrinsic distinction? Surely, it’s no longer relevant, right? Well, I guess the Ninth Circuit wasn’t quite prepared to get that radical. With a little hocus-pocus, it sort of re-purposed the distinction in the service of substantial similarity/unlawful appropriation. Now, instead of being objective and subjective, it’s about making sure you have both evidence of appropriation of protected elements and that gut-feeling. OK, whatever?that might actually be an improvement, since its one way to reconcile “total concept and feel” with a need to filter out non-protectable elements.

Emphasis on “Might”

The fight’s not over. When a Circuit court takes up an appeal, it assigns a panel of three of its judges. In theory, a panel can’t overrule an earlier panel?for that to happen, you need the entire court, or in the 9th Circuit a larger panel of judges, (called “en banc”) to take up the case, which is rare (but not unheard of). Right now, later panels have the option of picking which framework they want to use: follow “Blurred Lines'” traditional Ninth Circuit framework, or adopt “Stairway to Heaven’s” newfangled Preferred Framework. Obviously, parties are going to pick the one that works best for them. We might end up with an internally-split circuit (which is essentially the current situation with the Second Circuit). Of course, the Supreme Court to step in and fix it, but let’s be serious. Indeed, it is almost scandalous that, for decades, there have been multiple frameworks for a concept CENTRAL to copyright law, and the Supreme Court has never expressed interest in the subject.

Now, as it happens, the court’s discussion of the “inverse-ratio” rule, and its related description of the Preferred Framework, is not what caused the court to vacate the jury verdict and send the case back down for a second trial. I’ll explain the twin brain farts that caused that disaster in a subsequent post.

Rick Sanders is a trademark, trade secrets and copyright litigator and a founding partner of Aaron & Sanders, PLLC. From 2012 to 2014, he was an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. He blogs at IPBreakdown and tweets at @RickSandersLaw.

Filed Under: 9th circuit, blurred lines, copyright, infringement, inverse ratio, jimmy page, led zeppelin, randy california, robert plant, spirit, stairway to heaven, taurus