Is the Supreme Court ready to make music history? One petitioner is giving nine justices of the high court such an opportunity while hardly being subtle about it. Here are the opening notes from a new cert petition: “It is fitting, perhaps, that the future of music copyright law be decided by a case about rock ‘n’ roll’s most iconic song, ‘Stairway to Heaven.’”
The petition comes from Michael Skidmore, trustee for the Randy Craig Wolfe Trust — which is to say he’s representing an interest once belonging to Randy “California” Wolfe, singer-songwriter for the rock band Spirit.
Wolfe authored a song “Taurus,” which many observers see as being extremely similar in structure to the opening of Led Zeppelin’s “Stairway to Heaven.” But copyright law isn’t so elementary. Led Zeppelin won at trial in 2016, and the 9th Circuit Court of Appeals decided in March that no retrial was necessary. That’s got Skidmore ascending the judicial stairway looking for nirvana.
Does he have a shot? A slim one perhaps.
Skidmore believes he lost at trial because the jury didn’t get to appreciate the true “Taurus.” That’s because the trial judge held that only what was deposited with the U.S. Copyright Office had the benefit of protection under the 1909 Copyright Act. The petitioner thinks this is wrong, and that the scope of copyright isn’t defined by any deposited sheet music. In other words, the recording may be good evidence of what was protected, and the jury should have heard the original “Taurus” recording. (Only in the mid-1970s did Congress change the law and allow sound recordings to fall under copyright. That’s one of the big reasons this is the sort of precise legal controversy that has mainly come up for older songs including Marvin Gaye’s “Got to Give It Up.”)
But that’s not the sum of it.
Skidmore also believes he lost at trial because the jury wasn’t properly instructed about originality. Notes of music can’t be protected, and oft-used combination of notes belong to the public domain. But when there’s something unique about the selection and arrangement of these notes, that can be copyrighted. The jury wasn’t told this by the judge before they began deliberating. The cert petition paints the 9th Circuit’s en banc opinion as a “disaster for the creatives whose talent is often preyed upon” and one that “baselessly redefine[s] originality as a high bar to gaining copyright protection.”
On the other hand, what the 9th Circuit actually ruled was that Skidmore never presented the selection and arrangement theory at trial, and thus any objection over jury instructions was forfeited. Furthermore, the 9th Circuit didn’t really disagree with the selection and arrangement theory, which was first articulated by the Supreme Court in a case about phone directories. Instead, the 9th Circuit said it was up to Skidmore to provide more explanation. As the opinion stated, “Presenting a ‘combination of unprotectable elements’ without explaining how these elements are particularly selected and arranged amounts to nothing more than trying to copyright commonplace elements.”
Skidmore’s petition was handled by an attorney at Francis Alexander LLC, the same firm that represented the plaintiff at the trial court. A lawyer with more experience on Supreme Court matters may have chosen to emphasize circuit splits. This one goes the other way, talking about how the 9th Circuit’s “Stairway to Heaven” opinion has actually been influential, cited on the other side of the country in Ed Sheeran’s ongoing copyright battle over allegedly lifting elements of Marvin Gaye’s “Let’s Get It On” for “Thinking Out Loud.” Skidmore’s attorney writes, “Cases under the 1909 Act are common, and will continue to be for the foreseeable future, necessitating that this Court address the Ninth Circuit’s holding before the damage becomes irreversible.”
The bid for Supreme Court review eschews hot areas of appellate concern like administrative law and statutory interpretation in favor of a dire warning about how courts — including the “Hollywood Circuit” — are abandoning long-held copyright principles. The petition also presents its first question by listing each and every year between 1909 and 2015.
Stylistic quirks aside, there is a reason why the 9th Circuit took two turns on this case, and there’s a reason why the U.S. Department of Justice picked a side in the fight. A thorny legal issue certainly lurks. The petition could draw amicus briefs from outside groups (as they did at lower stages) — musicians, intellectual property scholars and maybe even those interested in economic or racial justice. That largely derives from the warnings here that if the scope of copyright is defined by what’s deposited, “Most songs composed before 1976 are going to lose protection,” and, “This will most heavily impact historically disenfranchised communities (black blues artists, for example, which Led Zeppelin heavily ‘borrowed’ from and sometimes had to settle with) where the composition of music was not done on paper.”
Read the full petition at THR.com.
