Michael Skidmore v. Led Zeppelin
952 F.3d 1055 (9th Cir. 2020) (2020)
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Rule of Law:
The 1909 Copyright Act governs cases where the copyright was registered before the 1976 Act's effective date, and under the 1909 Act, the scope of the copyright for an unpublished musical composition is defined solely by its deposit copy (sheet music), not by sound recordings or performances. The "inverse ratio rule," which previously allowed a lower standard of proof for substantial similarity when a high degree of access was shown, is abrogated in the Ninth Circuit.
Facts:
- Randy Wolfe, professionally known as Randy California, wrote the instrumental song "Taurus" in 1966 or 1967.
- Wolfe's band, Spirit, released its first eponymous album, which included "Taurus," a few months after signing a recording contract in August 1967.
- In December 1967, Hollenbeck Music Co. registered the copyright in the unpublished musical composition of "Taurus" and deposited one page of sheet music (the "Taurus deposit copy") with the U.S. Copyright Office.
- The English rock band Led Zeppelin, formed by Jimmy Page, Robert Plant, John Paul Jones, and John Bonham, released its fourth album, containing "Stairway to Heaven," in late 1971.
- Spirit and Led Zeppelin performed at the same venue at least three times between 1968 and 1970.
- After Randy Wolfe passed away in 1997, his mother established the Randy Craig Wolfe Trust, which Michael Skidmore became a co-trustee of in 2006.
- In May 2014, Skidmore filed a lawsuit alleging that the opening notes of "Stairway to Heaven" infringed the copyright in "Taurus."
- Skidmore's claim focused on the eight-measure passage at the beginning of the "Taurus" deposit copy, which incorporates five descending notes of a chromatic musical scale.
Procedural Posture:
- Michael Skidmore, as Trustee for the Randy Craig Wolfe Trust, sued Led Zeppelin and other related music entities in the Eastern District of Pennsylvania, alleging copyright infringement and a "Right of Attribution" claim.
- The case was transferred to the Central District of California.
- Led Zeppelin moved for summary judgment, which the district court granted in part (dismissing claims against certain defendants and the "Right of Attribution" claim) and denied in part (allowing the core copyright claims of ownership, access, substantial similarity, and damages to proceed to trial).
- The district court ruled that under the 1909 Copyright Act, the scope of the copyright was limited to the one-page "Taurus" deposit copy, and thus excluded sound recordings of "Taurus" and related expert testimony from the substantial similarity analysis.
- A five-day jury trial was held, predominantly focusing on the issues of access to "Taurus" by Led Zeppelin members and substantial similarity between the two songs.
- The jury returned a verdict for Led Zeppelin, finding that Skidmore owned the copyright to "Taurus" and that Led Zeppelin had access to "Taurus," but that the two songs were not substantially similar under the extrinsic test.
- The district court entered a judgment and an amended judgment in favor of Led Zeppelin.
- Skidmore timely appealed the amended judgment to the Ninth Circuit Court of Appeals.
- Warner/Chappell Music, Inc., one of the defendants, cross-appealed the district court's denial of its motion for attorneys' fees and costs.
- A three-judge panel of the Ninth Circuit initially vacated the amended judgment in part and remanded for a new trial.
- The Ninth Circuit subsequently granted rehearing en banc, meaning all eligible judges of the court would hear the case again.
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Issue:
1. Under the 1909 Copyright Act, does the scope of copyright protection for an unpublished musical composition extend beyond its deposit copy (sheet music) to include elements found in sound recordings or live performances? 2. Should the "inverse ratio rule," which reduces the burden of proving substantial similarity based on a high degree of access, be maintained in copyright infringement analysis?
Opinions:
Majority - McKeown
1. Yes, under the 1909 Copyright Act, the scope of copyright protection for an unpublished musical composition is limited to its deposit copy (sheet music) to the exclusion of sound recordings. The 1909 Act, which governs the "Taurus" copyright registered in 1967, did not protect sound recordings and specifically defined the scope of an unpublished work's copyright by its single deposit copy. The Copyright Office did not accept sound recordings as deposit copies. This requirement provided notice to third parties and prevented confusion about the copyright's scope, as supported by case law like Goldstein v. California. Although the 1976 Copyright Act later permitted sound recordings as deposit copies and recognized their publication, these changes do not retroactively apply to works copyrighted before its 1978 effective date. Therefore, the district court correctly confined the substantial similarity analysis to the "Taurus" deposit copy. 2. No, the "inverse ratio rule" should not be maintained in copyright infringement analysis; it is hereby abrogated in the Ninth Circuit. The inverse ratio rule, which allowed a lower standard of proof for substantial similarity with high access, has led to uncertainty and inconsistent application within the circuit, and is rejected by the majority of other circuits. This rule confuses the distinct concepts of "copying" and "unlawful appropriation" and leads to illogical outcomes, such as suggesting liability in cases of high access but no actual similarity. The rule unfairly favors popular works and imposes an "inverse burden" on juries. Abrogating the rule clarifies that access serves as circumstantial evidence of actual copying but cannot diminish the requirement to prove substantial similarity in protected elements. The court also affirmed the district court's originality instructions, which correctly stated that copyright protects only original expression and not common musical elements like scales or arpeggios, which are unprotectable public domain "building blocks." Finally, the court found no error in the omission of a selection and arrangement instruction, as Skidmore did not properly preserve the objection and did not distinctly present such a theory at trial.
Concurring - Watford
I join the court’s opinion, with the exception of Section IV.C (the section discussing the selection and arrangement instruction), because I see no reason to decide whether Skidmore adequately preserved his request for such an instruction. Even if the instruction had been given, no reasonable jury could have found infringement. Skidmore’s theory of originality was based on the selection and arrangement of five unprotectable musical elements in a four-measure passage of "Taurus." Given the "narrow range of creative choices available" for combining basic elements in such a short musical phrase, "Taurus" received only a "thin" copyright protection, meaning infringement would require "virtually identical copying." The undeniable and obvious differences between the relevant passages of "Taurus" and "Stairway to Heaven" (e.g., different melodies, use of treble clef, rhythm) preclude a finding of virtual identity, so Skidmore’s infringement claim would have failed as a matter of law.
Partial concurring and partial dissenting - Ikuta
I dissent from Parts IV(B) to (C) of the majority opinion, which deal with the originality instructions and the omission of the selection and arrangement instruction. The district court erred by not providing a selection and arrangement instruction to the jury, despite it being central to Skidmore’s infringement theory and supported by both law and evidence. Skidmore's theory was that a four-bar passage of "Taurus," which combined an ascending line and a descending chromatic line in a unique and memorable way, was substantially similar to a repeated musical passage in "Stairway to Heaven." Legal precedent, including Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. and Three Boys Music Corp. v. Bolton, clearly establishes that a combination of common musical elements can be protectable if their selection and arrangement is original. The majority incorrectly asserts that Skidmore did not present this theory at trial, an assertion contradicted by expert testimony. The instructions given to the jury were misleading because they told the jury to disregard common musical elements without also explaining that unique combinations of such elements could be protected. This error effectively deprived the jury of the opportunity to properly consider Skidmore's central theory. Furthermore, Skidmore preserved his objection to the omission of the instruction, and the district court’s error was plain, prejudiced the outcome of the case, and constituted a "miscarriage of justice" by preventing a fair opportunity to present his claim. I also disagree with the concurring opinion's assertion that musical works inherently have a "thin" copyright, as musical expression is limited only by artistic imagination.
Analysis:
This en banc decision fundamentally alters Ninth Circuit copyright law, particularly by abrogating the "inverse ratio rule," thereby eliminating a unique standard of proof and aligning the circuit with the majority of other appellate courts. This change promotes consistency and clarity in copyright infringement litigation, especially in determining substantial similarity. The ruling also firmly establishes the limitations of the 1909 Copyright Act, emphasizing that for older works, only the physical deposit copy (e.g., sheet music) defines the scope of protection, which can significantly impact cases involving musical compositions developed through improvisation or live performance not captured in the original registration. While reinforcing that individual common musical elements are unprotectable, the case also acknowledges that their unique selection and arrangement can form a protectable expression, but stresses the importance of clearly articulating such a theory at trial for proper jury instruction.
