Alterations to Rock History?

Have you ever seen the 1992 film Wayne’s World when Wayne Campbell, played by Mike Myers, visits a music store and picks up a guitar, and launches into the first few notes of Led Zeppelin’s “Stairway to Heaven” only to be cut short by a clerk pointing to a sign reading “No ‘Stairway to Heaven?'”

The joke is pretty simple: most novice electric guitarists attempt to learn that song

early on. The joke in the film became less funny when Led Zeppelin refused to allow those notes to appear in any versions of the film after its theatrical release. In the film’s current form, Wayne picks up a guitar and plays a few random notes that sound nothing like the song, making the scene not so funny.

Ironically, the illustration above makes this story a little inane. On May 30, 2014, Pennsylvanian attorney Francis Malofiy filed a forty page lawsuit against the surviving members of Led Zeppelin, their publisher, and their record label, alleging that the band stole the guitar line and melody from the song “Taurus” written by Randy Craig Wolfe and used it in the song “Stairway to Heaven.”

A Pennsylvania Federal Court will hear the copyright Infringement lawsuit, Skidmore, et al v. Led Zeppelin, et al., No. 2:14-cv-03089 (E.D. Pa., May 31, 2014), over the 1972 song.

The suit is brought by Micheal Skidmore as Trustee for the Randy Craig Wolfe Trust, which was established by Randy’s mother after his death in 1997. He died saving his son who was being swept out to sea.

Randy Craig Wolfe (aka "California Randy") is considered by many a guitar virtuoso, reportedly discovered by Jimi Hendrix at the age of 15 and later becoming a founding member of the band Spirit who, according to the complaint, “pioneered the psychedelic rock sound.” Spirit is known for the song “I Got a Line on You.” In January of 1968, Spirit released a self-titled album, which became a top 40 Billboard charting album. That album has a song named "Taurus," which has a 2 minute 37 second instrumental guitar riff written by Randy California.

On December 26, 1968 Led Zeppelin had just finished recording its first album and was in the United States promoting it with a series of shows, some of which opened for Spirit. During this concert, Spirit played “Taurus,” as it did while touring with Led Zeppelin into 1969.

According to the lawsuit, “It was during this time that Jimmy Page, Led Zeppelin’s guitarist, grew familiar with 'Taurus'”. It is also states that while touring, Led Zeppelin began to cover songs and incorporated Spirit’s song “Fresh Garbage” in a medley called “As Long As I Have You,” which they performed during their live sets during that time. The lawsuit states: "It is not coincidence that the iconic notes to 'Stairway to Heaven,' that have enthralled generations of fans, sound almost exactly the same as California’s ethereal yet classical guitar composition in 'Taurus.'”

What about the statue of limitations? Led Zeppelin first released "Stairway to Heaven" around 43 years ago. Under U. S. Copyright Act, civil infringement actions must be “commenced within three (3) years after the claim accrued.” This effectively means that a new three-year statute of limitations begins anew each time a new wrong is committed, such as a new rerecording, reproduction, or public performance. In addition to other damages, the lawsuit requests an injunction to prohibit a scheduled reissue album that has been remastered and includes the song.

Elements of copyright infringement:

Copying may be proven by direct evidence, such as witness testimony, the defendant’s own admission, or photos or video catching the defendant in the act. More commonly, however, copying is demonstrated through circumstantial evidence establishing (1) access to the plaintiff’s work and (2) probative similarities between the works.

Access can be proven through evidence that the defendant had a reasonable opportunity to observe the plaintiff’s work. The lawsuit claims that there was “access” during the time that the two bands were touring.

Substantial Similarity in U.S. copyright law “is the standard used to determine whether a defendant has infringed the reproduction right of a copyright.” It refers to a strong resemblance between a copyrighted work and an alleged infringement. The standard for substantial similarity is whether an ordinary person would conclude that the alleged infringement has appropriated nontrivial amounts of the copyrighted work’s expression.

Substantial similarity is considered to be an appropriate test for infringement. It is also called ordinary observer test. Under U.S. law, the standard a jury or judge would apply is whether the song sounds like a copy to an ordinary lay listener.

Current status of the "Stairway to Heaven" lawsuit:

Led Zeppelin's attorneys filed a motion requesting that the case should be moved to California or dismissed. Led Zeppelin challenged whether the United States District Court for the Eastern District of Pennsylvania, where the suit was filed, had the right to rule on the case. “The individual defendants are British citizens residing in England, own no property in Pennsylvania and have no contacts with Pennsylvania, let alone ties sufficient to render them essentially at home here,” they argued.

The plaintiffs countered by amending their lawsuit to add the claim that through the exploitation of “Stairway to Heaven,” the band’s members “make millions of dollars from the Easter District of Pennsylvania via CD sales, digital downloading, radio and television play, advertising, marketing, concert performance, and other avenues of income.

Justice Juan Sanchez denied the request for dismissal or a change of venue.

Look for part two of this article, coming soon, which will delve further into the lawsuit's claims.

#Copyright #NewCaseLaw