Nature of the Case
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Facts
Nearly 40 years after the English rock band D released its hit recording of Stairway to Heaven, the song is not impervious to copyright challenges. The estate of guitarist Randy Wolfe, P, claims that D and its guitarist Jimmy Page and vocalist Robert Plant copied portions of Taurus, a song written by Wolfe and performed by his band Spirit. Randy Wolfe, AKA Randy California, wrote the instrumental song Taurus in 1966 or 1967. He was a guitarist n the band Spirit. Spirit signed a recording contract in August 1967 and released its first eponymous album-which included Taurus-a few months later. Wolfe also entered into an Exclusive Songwriter's and Composer's Agreement with Hollenbeck Music Co. ('Hollenbeck'). In December 1967, Hollenbeck registered the copyright in the unpublished musical composition of Taurus, listing Wolfe as the author. As required for registration of an unpublished work under the 1909 Copyright Act, Hollenbeck transcribed Taurus and deposited one page of sheet music (the 'Taurus deposit copy'), with the United States Copyright Office. D released its fourth album in late 1971. The untitled album, which became known as 'Led Zeppelin IV,' contained the song Stairway to Heaven. Stairway to Heaven was written by Jimmy Page and Robert Plant. Spirit and D crossed paths in the late 1960s and the early 1970s. The bands performed at the same venue at least three times between 1968 and 1970. D also performed a cover of a Spirit song, Fresh Garbage. But there is no direct evidence that the two bands toured together, or that D band members heard Spirit perform Taurus. Neither Wolfe nor his mother filed a suit regarding Stairway to Heaven. P became a co-trustee of the Trust in 2006 and filed a suit alleging that Stairway to Heaven infringed the copyright in Taurus. P alleged direct, contributory, and vicarious copyright infringement. P claims that the opening notes of Stairway to Heaven are substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy. The claimed portion includes five descending notes of a chromatic musical scale. These notes are represented on the piano as a set of adjacent black and white keys, from right to left. The beginning of Stairway to Heaven also incorporates a descending chromatic minor chord progression in A minor. However, the composition of Stairway to Heaven has a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios, which are not present in Taurus. At the close of discovery, D moved for summary judgment. The district court granted the motion in part and denied it in part. The district court also ruled that under the 1909 Act, the scope of the copyright was circumscribed by the musical composition transcribed in the Taurus deposit copy. Thus, only the one-page Taurus deposit copy, and not a sound recording, could be used to prove substantial similarity between Taurus and Stairway to Heaven. The court granted Ds motion in limine to exclude Taurus sound recordings and expert testimony based on those recordings. The district court found that there were triable issues of fact relating to ownership, access, substantial similarity, and damages. P's expert, Dr. Alexander Stewart, analyzed one by one, five categories of similarities. Dr. Stewart acknowledged that a chromatic scale and arpeggios are common musical elements. But he found Taurus and Stairway to Heaven to be similar because the descending chromatic scales in the two compositions skip the note E and return to the tonic pitch, A, and the notes in the scale have the same durations. Then he pointed to three two-note sequences-AB, BC, and CF#-that appear in both compositions. In his view, the presence of successive eighth-note rhythms in both compositions also made them similar. Finally, he testified that the two compositions have the same 'pitch collection,' explaining that certain notes appear in the same proportions in the beginning sequence of both works. P did not argue that the categories of similarities were selected and arranged to form protectable expressions in the design, pattern, or synthesis of the copyrighted work. Nor did they make a case that a particular selection and arrangement of musical elements were copied in Stairway to Heaven. Dr. Lawrence Ferrara testified that the similarities claimed by P either involve unprotectable common musical elements or are random. Dr. Ferrara explained that the similarity in the three two-note sequences is not musically significant because in each song the sequences were preceded and followed by different notes to form distinct melodies. He described the purported similarity based on these note sequences as akin to arguing that 'crab' and 'absent' are similar words because they both have the letter pair 'ab.' He also testified that the similarity in the 'pitch collection' is not musically meaningful because it is akin to arguing that the presence of the same letters in 'senator' and 'treason' renders the words similar in meaning. The district court did not give the proposed instructions on the inverse ratio rule and the selection and arrangement of unprotectable elements. P objected to the district court's decision to omit an inverse ratio instruction but did not do so as to the omitted selection and arrangement instruction. D got the verdict. It found that D had access to Taurus, but that the two songs were not substantially similar under the extrinsic test. P appealed (1) the ruling that substantial similarity must be proven using the copyright deposit copy; (2) the ruling that sound recordings could not be played to prove access; (3) various jury instructions; (4) the imposition of overall time limits for the trial; (5) the fact that the full version of Taurus was played in response to the jury's request; and (6) the decision not to exclude or sanction Dr. Ferrara because of a claimed conflict of interest. A panel of the court vacated the amended judgment in part and remanded for a new trial. A hearing en banc was allowed.
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