NINTH CIRCUIT TO TAKE A SECOND LOOK AT ITS RULING CONCERNING THE CASE AGAINST LED ZEPPELIN
Steven T. Lowe
On June 10, 2019, the Ninth Circuit decided that all of the judges of the Ninth Circuit Court of Appeals would “rehear” the previous panel’s decision reversing a lower court verdict in favor of Led Zeppelin.
The lawsuit was originally filed in 2014 by Michael Skidmore (“Skidmore”), the trustee for the lead singer of a group called “Spirit.” Skidmore claimed Zeppelin used the introduction from Spirit’s 1967 instrumental ballad called “Taurus,” in order to create the classic Zeppelin song, “Stairway to Heaven.”
In 2016, a jury issued a verdict in favor of Led Zeppelin (notwithstanding the striking similarity between Taurus and the intro to Stairway, and the close relationship between Spirit and Led Zepplin). But in 2019 the Ninth Circuit ruled that a trial judge had “undermined” the plaintiff’s case by issuing issued instructions that misled jurors in a number of ways, potentially tainting their finding, including failing to inform jurors that unprotectable elements can nonetheless still be protected by copyright law when arranged in creative ways (i.e., the “selection and arrangement” test).
The court now says it will reconsider the long-running case “en banc,” a rare decision by the court meaning a larger panel of the court’s judges will rehear it. Oral arguments before the court are set for the week of September 23, 2019.
Led Zeppelin, who wants the court to wipe out the entire panel ruling and reinstate the jury verdict, wrote in its petition for an en banc hearing that the September 2018 decision raised issues of “extraordinary importance to the creators of music, movies and other works…The errors warrant en banc review because if left uncorrected they allow a jury to find infringement based on very different uses of public domain material and will cause widespread confusion in copyright cases in this circuit.”
Skidmore also requested rehearing on a discrete issue: Skidmore wants the en banc court to overturn one small aspect of the panel’s decision: That the scope of their copyright to “Taurus” was not defined by the bare-bones sheet music filed with the Copyright Office. Skidmore claims that such “deposit copies” were intentionally limited versions of full songs in the 1960s, and relying on them would create “a seismic disenfranchisement of songwriters.” Skidmore added, “This will be devastating to songwriters who have owned their music for decades, only to be told in 2018 for the first time that they do not actually own most of their music created half a century ago.”
Skidmore is represented by Francis A. Malofiy and AJ Fluehr of Francis Alexander LLC.
Led Zeppelin and its affiliated music companies are represented by Peter J. Anderson of Davis Wright Tremaine LLP and Helene Freeman of Phillips Nizer LLP.
The case is Michael Skidmore v. Led Zeppelin et al., case number 16-56057, in the U.S. Court of Appeals for the Ninth Circuit.
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