spirit – Techdirt (original) (raw)

DOJ/Copyright Office File An Amicus Brief In Support Of Led Zeppellin

As announced by the Copyright Office’s General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song “Taurus” with their classic “Stairway to Heaven.” We’ve discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach’s Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody.

There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome — that Led Zeppelin didn’t infringe on the Taurus composition — seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up.

The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really.

And here, the Copyright Office and the DOJ are on the right side again. The government’s brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we’ve discussed, for musical works prior to 1973, you could only get a copyright in the “composition” and not the recording. One of the arguments in this case is that Randy Wolfe’s estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968… so you don’t just get to pretend that the composition copyright magically covers the sound recording.

Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not.

And — perhaps surprisingly — the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what’s left is fairly basic and not covered by copyright either:

The copyright at issue here was obtained, as the Copyright Act then required, by depositing a ?complete copy? of the work with the Copyright Office. The copyright that was created by that deposit extends only to the work that was deposited with the Copyright Office. While there may be other, related works in which the author or his successors may hold or have held rights, the federal copyright at issue here extends only to the work that was deposited. The district court and the panel thus properly concluded that ?performance elements,? which might have been present when the song was performed or recorded but were not reflected in the deposited sheet music, are not protected by the copyright registered with the Copyright Office.

Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a ?thin? copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court?s judgment should be affirmed.

The brief here is quite readable, and more or less mocks the arguments of the plaintiff for not recognizing that the same song can have a variety of different copyrights:

Plaintiff?s suggestion that the copyrighted work is something other than the work deposited with the Copyright Office appears to be largely premised on the mistaken view that there cannot be multiple, distinct copyrightable works that are all versions of the same song. The statute expressly contemplates that there can be.

It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case. But here we are.

There is still time for the 9th Circuit to mess things up even worse, though. They’re good at that when it comes to copyright. Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one.

Filed Under: amicus brief, composition, copyright, copyright office, doj, led zeppelin, spirit, stairway to heaven, 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

from the pigs-are-flying-over-hell's-frozen-tundra dept

Here’s one you don’t see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over “Stairway to Heaven” that we’ve been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin’s “Stairway” did not infringe on the copyright in the Spirit song “Taurus.” While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case — in part to fix the 9th Circuit’s weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I’ve been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it’s actually kind of an important way for most musicians to develop), and if that’s seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And… that’s actually what it’s done. The RIAA and the NMPA (National Music Publisher’s Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360’s Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers? intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can’t believe I’m saying this) make the same argument I’ve been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions?sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of ?selection and arrangement? defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely ?selected? the same elements at some level of generality.

To keep every work from infringing?and to keep authors from being able to claim ownership of otherwise unprotected elements? this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail — again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) — on why it’s crazy to argue that non-protectable works should be analyzed in determining if there’s infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if ?used in combination with other elements in an original manner,? slip op. at 20, as a form of creative ?selection and arrangement,? id. But all compositions will share some elements of ?selection and arrangement,? defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on ?original contributions to ideas already in the public domain,? Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a ?thin copyright that protects against only virtually identical copying.? Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (?When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ?thin? copyright, which protects against only virtually identical copying.?); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the “inverse ratio” rule is incredibly stupid. This is the rule adopted by some courts that the amount of “substantial similarity” necessary to show infringement decreases with the amount of “access” the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out?played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a ?high degree of access? (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a ?lower standard of proof of substantial similarity,?

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit?s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin’s Jimmy Page listening to the recordings “to evaluate his demeanor.” As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that ?allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.? Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, ?Yes, I had heard that song back then??

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page — and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa

Can't Wish Away The Mistakes In The Original 'Stairway To Heaven' Verdict

from the probably-will-still-win,-but-needed-to-be-reversed dept

Yesterday we published the first part of an analysis by copyright lawyer Rick Sanders who wrote up a thorough analysis of the recent 9th Circuit decision to overturn the jury verdict in a case involving whether or not the Led Zeppelin song “Stairway to Heaven” infringed on another song. The first part described how the 9th Circuit might correct a problematic “test” for infringement, and this part analyzes the problems with the jury instructions.

Last time, I explained why I thought the Ninth Circuit’s recent vacating and remanding of the jury verdict in Led Zeppelin’s favor was, long-term, a good thing for copyright law (even if I kind of liked the verdict and am genuinely sorry for Led Zeppelin). The reason is that the reversal gave one panel of the Ninth Circuit an opportunity to try to fix the Ninth Circuit’s unhelpful legal framework for determining copyright infringement.

But that isn’t why the panel reversed. While the panel did make some suggestions about how to present the “inverse-ratio” rule to the jury, the way it was presented to the original jury isn’t what merited reversal. What merited reversal was the lack of another jury instruction about a basic and uncontroversial principle of copyright law that the parties agreed should have been there in some form. In short, the case is being reversed ? and the Ninth Circuit is getting a chance to fix its own weird copyright law ? because of what appears to have been a brain fart.

Jury Instructions: An Introduction

We all gasped when we heard about the reversal. Jury verdicts are hardly ever reversed. One of the few ways a jury verdict can be thrown out is if the jury was badly instructed in the law. Juries, naturally, don’t bring any knowledge about the law with them when they serve. That’s not their job, really. Their job is to weigh evidence, make credibility determinations, and so forth. But at some point, they need to be told what the law is, so they can take all that evidence they weighed and apply it to the law and render a verdict. How this is accomplished might surprise you.

There are several ways for jury instructions to be prepared and delivered to a jury, but the main way is this. First, the parties’ attorneys confer about what jury instructions they can agree on and jointly submit those instructions to the court. In this, they are aided by pattern jury instructions prepared at the circuit court’s direction. But pattern jury instructions don’t cover every aspect of every area of the law. You’d need ever-updating volumes to do that. Also, the pattern jury instructions aren’t unassailable: a party might disagree with one and explain how it should be and why.

For all other jury instructions, the parties submit their own versions of instructions they think address all of the legal issues being raised at trial, together with a short explanation of the legal authorities for their versions. The judge decides which version to use, or the judge might even craft his or her own version based on their own research.

Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the “jury charge.” The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations).

“Selection and Arrangement”: An Introduction

In this case, the parties agreed that they needed an instruction about what to do with a work that is made up of unprotectable elements. Just because your work is made up of lots of unprotectable elements, that doesn’t mean your work as a whole can’t be protected by copyright. If you put those unprotectable elements together in an original way, then the way you put those elements together is protectable, though not the individual elements themselves. After all, you can theoretically dissect any creative work down into non-protectable elements: individual notes, individual words and phrases, individual brushstrokes, etc. It’s what you do with those non-protectable elements that counts. Courts call this “selection and arrangement,” which makes it seem more abstract than it is.

In this case, the plaintiffs hold the copyright in the song “Taurus,” which has for years been rumored as the inspiration for Led Zeppelin’s “Stairway to Heaven.” (But inspiration isn’t infringement! Well, at least, not necessarily.) When the plaintiffs finally got around to suing, Led Zeppelin argued (among other things) that any similarities between the songs were only for non-protectable elements, like the use of the chromatic scale. Plaintiffs argued that, even if that were true, the “selection and arrangement” of those elements were original (and, by implication, that “Stairway to Heaven” took that selection and arrangement).

Both parties recognized the need for an instruction on this issue. They disagreed on what it should say. They submitted competing instructions for the judge to consider. Then came the jury charge, at the very end of the case, just before the jury began deliberations. The judge began to read the instructions. Now, normally, a party would have an opportunity to object on the record to an instruction. This is a prerequisite to complaining about it on appeal. But the judge here didn’t want to hear any objections. He reasoned that, if the parties disagreed about an instruction in their submissions, it was reasonable to assume that they would object to an instruction that didn’t match what they’d submitted.

The parties waited for the instruction about what to do with works made up of unprotectable elements. It never came. This was good for Led Zeppelin, though not ideal. On the one hand, since Led Zeppelin had presented evidence that all they’d taken (if anything) from “Taurus” was not protectable, such an instruction couldn’t help their argument, no matter how it was crafted. On the other hand, it was foreseeable at the time that the missing jury instruction could imperil a jury verdict in Led Zeppelin’s favor (assuming they could focus on it with 500 other things going on at that moment.

On appeal, the strongest argument ? that trial court was correct not to give the instruction ? wasn’t really available to Led Zeppelin because even it had suggested an instruction. (Led Zeppelin tried anyway.) Instead, it had to argue that the missing instruction made no difference to the jury’s deliberations. That’s where another major goof with the jury instructions came in.

Copyright’s Broad Scope

Nearly all copyright cases will need an instruction about originality. Without “originality,” there is no copyright. Originality, however, is pretty easy to achieve. All that’s really required is that the work be expressive (i.e., not just ideas) and the product of a human mind. This last requirement not only excludes things like the “monkey selfie,” but also things like underlying facts, which exist independent of human thought; and stock “tools of the trade” commonly available to everyone in the creative field, like stock characters, computer code that everyone uses, certain three chord progressions, and so forth (what lawyers call “scènes à faire”). It also excludes material the author copied from other works (including those in the public domain), but only if the author actually copied them. Originality doesn’t mean novelty, just that it’s the author’s independent expression.

Originality is so basic to copyright law that there’s actually one of those “pattern jury instructions” about it. Pattern jury instructions aren’t law and aren’t always appropriate in every instance, but departure from them demands explanation. The court took the model instruction and added the stuff in bold and took out the stuff that’s been struck through:

An original work may include or incorporate elements taken from works owned by others, with the owner’s permission. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, [t]he original parts of the plaintiff’s work are the parts created:

> 1. independently by the work’s author, that is, the author did not copy it from another work; and > 2. by use of at least some minimal creativity.

In copyright law, the “original” part of a work need not be new or novel.

You might detect a pattern here (as it were). The instruction about how to treat works consisting of non-protectable elements was left out. Now the instruction about originality includes a new sentence that emphasizes how non-protectable elements aren’t protectable, without telling the jury that those non-protectable elements can be selected and arranged in a protectable way.

What it Means to Create

I don’t know if copyright has a single “heart.” Perhaps, like an octopus, it has several hearts. But surely one of copyright law’s hearts is that creativity can and often does build on the work of others. This idea is echoed in fair use. And it is echoed in the non-controversial idea that not every element of a work must be protectable for the work to be entitled to copyright protection. “Selection and arrangement” is just a stilted and abstract way of saying: if you give 100 kids the same collection of 100 lego bricks, you will have 100 different original works in about 30 minutes, even though no single lego brick is protectable and even though the 100 different original works will naturally share certain techniques in common.

These two errors in the jury instructions aren’t just about technicalities of a highly technical law. Goodness knows there’s a lot of those in copyright law. No, they go to one of the basic tenets of copyright law: what it means to create.

My charitable interpretation of all this is that the court had a major brain fart that Led Zeppelin’s lawyers didn’t see coming or didn’t fully understand how perilous the consequences would be. The other interpretation is that this was a legal strategy that worked too well and backfired badly. It’s too bad. I strongly suspect that a correctly instructed jury would have come to the same verdict, but the scale of this mistake is such that we can’t safely assume that. I also strongly suspect Led Zeppelin will prevail on remand?after incurring more expense, lost time and anxiety.

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: copyright, infringement, jury instructions, 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

from the copyrightable-elements dept

Well, this is depressing. Back in 2016, we wrote about yet another copyright infringement case where we feared the impact on creativity in music. At issue was whether or not the band Led Zeppelin had infringed on the copyright of Randy Wolfe (aka Randy California) who had written the song Taurus for his band Spirit. Taurus has some similarities to Led Zeppelin’s classic “Stairway to Heaven”:

If you listen to that, you might think that the two songs sound pretty similar at points, and thus perhaps Led Zeppelin copied Taurus, violating the copyright on the song. But things are much more complicated than that. For example, it certainly could be argued that both of those songs actually sound remarkably similar to J.S. Bach’s Bouree In E Minor, which is absolutely in the public domain:

As that video shows, the same basic melody can be found in a bunch of songs, including Henry Purcell’s “Dido’s Lament” (which predates even the Bach song), as well as Rogers and Hart’s “Funny Valentine,” Arthur Hamilton’s “Cry Me A River” and a bunch of other songs, which all predate Taurus. This is, of course, the nature of music. There are themes and melodies and concepts and cord structures that get repeated over time, sometimes by accident, sometimes through homage, and sometimes by coincidence.

So when it comes to copyright it’s important to look at what is actually covered by the copyright, which goes way beyond “hey, do these songs sound similar?” Unfortunately, many courts have messed this up over the years, including a few that came up with a ridiculous “substantial similarity” test, rather than actually comparing the copyright-protected elements of the songs. One such case that got this wrong is the infamous Blurred Lines case, in which even though the copyright-protected elements of two songs were totally different, it was decided that there was copyright infringement.

That’s why we were pretty stunned, back in the summer of 2016 that a jury sided with Led Zeppelin. Part of the reason why that worked was that the jury was not allowed to just listen to the two songs, because the copyright on the sound recordings was not at issue (indeed, at the time of Taurus, there was no federal copyright to be had on the sound recording). Thus, they had to look at what was actually covered by copyright, which is much more limited. Of course, this is the correct way to do things, because if we’re looking for copyright infringement, it seems ridiculously unfair to allow the jury to be influence by content that is not protectable under copyright.

So, the end result in the district court was the right one. But… this is the 9th Circuit we’re talking about, and when it comes to copyright, it will always figure out how to make things worse. And that’s what it’s done by vacating the original order and ordering a brand new trial, with conditions that will make life much more difficult for Led Zeppelin (hat tip to Eriq Gardner at The Hollywood Reporter for spotting this first).

The ruling, by Judge Richard Paez, should be anger-inducing for copyright nerds. It basically picks up on a few earlier cases that make the nonsensical claim that if you have greater “access” to the earlier work, a copyright plaintiff needs to show less similarity to argue 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.? Rentmeester, 883 F.3d at 1117. ?When a high degree of access is shown,? a lower amount of similarity is needed to prove copying. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (citation omitted). ?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.?

This makes literally no sense under the law. How can anyone say that you “need not involve protected elements of the plaintiff’s work.” If you’re not involving the part actually protected by copyright, how the hell can you claim there’s copyright infringement? But, because of 9th Circuit precedents, the court notes that only applies to the so-called “extrinsic” test for infringement, but there must also be an “intrinsic” test, in which we ignore all that and go with our gut feeling on whether or not the songs sound kind of similar. Which, of course, is madness.

To prove ?unlawful appropriation? a higher showing of substantial similarity is needed. Id. The works must share substantial similarities and those similarities must involve parts of the plaintiff?s work that are original and therefore protected by copyright. Id. To determine whether an allegedly infringing work is substantially similar to the original work, we employ the extrinsic and intrinsic tests. The extrinsic test is an objective comparison of protected areas of a work. This is accomplished by ?breaking the works down into their constituent elements, and comparing those elements? to determine whether they are substantially similar. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). Only elements that are protected by copyright are compared under the extrinsic test. Id. The intrinsic test is concerned with a subjective comparison of the works, as it asks ?whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.? Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000)

From there, the court makes a slightly stronger argument, that even if you have non-protectable components, the arrangement itself can be covered by copyright (even if you’re arranging public domain music — so long as it’s done in a new and novel manner). And here, the ruling says that the lower court failed to inform the jury that the arrangement alone could be covered by copyright, even if the elements were not:

Nowhere did the jury instructions include any statements clarifying that the selection and arrangement of public domain elements could be considered original. Jury Instruction No. 20 compounded the errors of that omission by furthering an impression that public domain elements are not protected by copyright in any circumstances. This is in tension with the principle that an original element of a work need not be new; rather, it need only be created independently and arranged in a creative way. See Feist Publ?ns, 499 U.S. at 345, 349; see also Swirsky, 376 F.3d at 849. Jury Instruction Nos. 16 and 20 in combination likely led the jury to believe that public domain elements?such as a chromatic scale or a series of three notes?were not protectable, even where there was a modification or selection and arrangement that may have rendered them original.

While this may seem reasonable on its face, it’s complicated greatly by the fact that the court also rules that, unlike in the first trial, the court should allow the actual sound recordings to be played for the jury. While it first notes that (contrary to the plaintiff’s wishes), the deposit copy of the song represents the actual copyright covered material rather than the sound recording, the jury should be able to hear the sound recording (which, again, includes plenty of non-copyrightable material). The district court, correctly, worried that the jury would likely not be able to separate out the copyright-protect and non-copyright protected material. But the appeals court doesn’t seem to care:

The district court excluded the sound recordings under Federal Rule of Evidence 403, finding that ?its probative value is substantially outweighed by danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . .? Fed. R. Evid. 403. Here, the district court abused its discretion in finding that it would be unduly prejudicial for the jury to listen to the sound recordings in order to assess Page?s access to ?Taurus.? The district court acknowledged that the recordings were relevant to whether Page had access to ?Taurus,? as Page would have heard and allegedly copied a recording of ?Taurus.? The district court was concerned, however, that allowing the jury to hear the recordings would confuse them.

The appeals court decides that it’s okay for the jury to hear the recordings… if it’s for the purpose of observing Jimmy Page listening to the recordings. Really.

Although the jury could still draw conclusions and inferences from Page?s demeanor during his testimony, allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions. Limiting the probative value of observation was not proper here, as the risk of unfair prejudice or jury confusion was relatively small and could have been reduced further with a proper admonition. For example, the district court could have instructed the jury that the recordings were limited to the issue of access and that they were not to be used to judge substantial similarity.

Either way, the case is going back to the lower court for a new round, and now that the jury is going to get to hear the songs, all bets are off on how this turns out. One hopes that with strong jury instructions a jury might recognize how limited the actual copyright is on Taurus, but given the results of the Blurred Lines case, that seems like a long shot. Frankly, it wouldn’t be that surprising to see this case settle before a new trial actually happens.

Filed Under: copyright, jimmy page, led zeppelin, music, randy california, randy wolfe, robert plant, similarity, spirit, stairway to heaven, taurus

from the even-though-it-shouldn't dept

This isn’t surprising, even if it is a bit disappointing. Led Zeppelin has long been accused of copying others songs, and there are actually a bunch of videos on YouTube detailing examples. Here’s just one:

Some of the examples do sound like pretty blatant copies, while others are, at best, homages or inspirations, rather than direct copies. Even so, it’s difficult to get too worked up about these complaints. It should be pretty clear that even where the band copied others, it did so in a different way that often got much more attention to the work than anything the original version got. Either way, there have been a few new lawsuits brought against Led Zeppelin recently, despite it being decades since the band was actually a thing. A few years ago, we wrote about folk singer Jake Holmes suing Jimmy Page for copying parts of the Led Zeppelin song “Dazed and Confused.” That case appears to have been settled out of court.

More recently, the estate of Randy Wolfe (aka Randy California), who was the guitarist for the band Spirit and wrote the song Taurus, sued the band over the song “Stairway to Heaven,” whose guitar line is obviously quite similar to Taurus. You can definitely hear the similarities, though the chord progression is pretty basic (and the two songs are not identical).

Of course, another video comparing the two notes that both songs are actually most similar to Bouree in E Minor by Johann Sebastian Bach — raising questions as to whether there’s any legitimate copyright at all here:

Either way, federal district court judge Gary Klausner rejected a variety of claims from Zeppelin’s Robert Plant and Jimmy Page and said that the case needs to go to trial in front of a jury. That’s going to make things difficult for Plant and Page. As with the Blurred Lines trial last year, you see that many people freak out when they hear two songs are pretty similar and assume that something wrong must have happened. Of course, that’s not how copyright law is supposed to work, but alas, that’s what years of the big legacy industries brainwashing the public on copyright has resulted in.

Of course, as we’ve noted in the past, tons of songs have similar chord progressions that can lead to similar sounding songs. It’s why there are multiple comedy routines pointing this out:

There’s only so much that can be done with musical chord progressions and some work really well and lead to a lot of similar sounding songs. And that’s not a bad thing. Some of them, quite likely, are inspired by others. In the Stairway to Heaven case lots of people point out that Led Zeppelin and Spirit toured together early on. So there’s a bit of “smoke” that leads people to scream fire (ignoring of course, that Bach came first). But again, does this really matter? Wolfe didn’t sue in the decades since the two songs were released. It was only many years later, after his death, that his estate suddenly decided to make a money-grab out of it.

Either way, judge Klausner thinks the songs have a similar “feel” and thus a jury should decide, quoting previous cases:

What remains is a subjective assessment of the ?concept and feel? of two works . . . a task no more suitable for a judge than for a jury.

Thankfully, Klausner does reject comparisons between the performance style between the two songs, noting that that’s different than the composition itself (the work that is actually covered by the copyright in question). But, again, that was also true in the Blurred Lines case and the jury more or less ignored it, because the songs sounded similar. So, again, there seems to be a good chance that Plant and Page will lose this case because a jury will think the two songs sound too similar. But sounding too similar isn’t how copyright law is supposed to work.

Filed Under: copyright, jimmy page, jury, led zeppelin, music, robert plant, similarities, spirit, stairway to heaven, taurus