Its a headline that would have been unimaginable in the 1970s, but it's true. The U.S. Department of Justice is backing Led Zeppelin in their long-running copyright dispute over the classic hit “Stairway to Heaven” which has major ramifications for copyrighted music.
The suit, filed in 2014 by the trustees of the Randy “California” Wolfe, the late singer and guitarist of the band Spirit. The suit accused Led Zeppelin of lifting a chord progression from Spirit’s song “Taurus.”
In 2016, jurors sided in favor of Zep, ruling that the band did not infringe on Spirit’s copyright, but the three-judge panel of the 9th U.S. Circuit Court of Appeals later ruled unanimously that the lower court had erroneously misled jurors about key elements of copyright law central to the case.
The case was further compounded by the use of performances based on “deposit copies” of the two songs. Prior to 1978, only sheet music was eligible for copyright and songs of the era were registered via renditions of recorded music transcribed by label employees to be filed with federal registrars.
As a result, the deposit copy lacks music notation for many elements of the actual recordings of Stairway and Taurus, including guitar technique, horn charts, bass lines, and intros.
If successful, the Wolfe Estate lawsuit would also open up thousands of other musical works to copyright infringement claims due to the widespread use of elements such as chord and chromatic scale in modern music.
The Department of Justice appeared to agree and in an amicus brief, filed on August 15th, noted that the United States, it took issue with the lower court’s use of deposit copies. DOJ notes that the statutory text stipulates that “the deposit does not serve to identify a copyrighted work that is available elsewhere, but rather, as the text indicates, is a “complete copy” of the copyrighted work.
“As the Copyright Office explained in its Compendium of Copyright Office Practices, for unpublished musical compositions copyright “protection extends only to the material actually deposited.” the DOJ said in its amicus brief.
The DOJ also addressed the potentially slippery slope of allowing copyright for fundamental structural aspects of music, and argued that the elements of the composition at issue are subject “at most, to a thin copyright, which was not infringed.”
It is well established that “expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law. In the musical context, this means that standard elements such as arpeggios (i.e., notes of a chord played in sequence) or chromatic scales can never be independently protectable under copyright law. Further, certain short musical phrases, even if novel, may not “possess more than a de minimis quantum of creativity” and thus may not be eligible for copyright protection.”