Hey, Hey, What Can I Do…? The 9th Circuit Court Made It Harder To Sue

Stephen Carlisle March 19, 2020

The case that seemingly would never end, has finally ended. The long running battle between the Randy Wolfe Trust and Led Zeppelin over “Stairway to Heaven” concluded in the most unusual fashion, with the full panel of the 9^th Circuit reversing its own previous panel’s ruling reversing the jury verdict. ¹

This blog has written about the Led Zeppelin case twice before, ² most recently criticizing the earlier 9^th Circuit decision reversing the jury verdict. The two main takeaways from this latest decision is that the 9^th Circuit has made it harder to win copyright infringement suits.

First and foremost, the decision repeals the “inverse ratio rule” that had previously been binding precedent within the 9^th Circuit, albeit a precedent that was less than perfectly adhered to. This rule stood for the proposition that a lowered standard of proof of substantial similarity between the two works is required where there is a high degree of access.

As the Court notes, the “inverse ratio rule” has been rejected by the Second, Fifth, Seventh and Eleventh Circuits. ³ Outside of the 9^th Circuit, only the 6^th Circuit has approved the rule. ⁴ In abrogating the rule, the Court does not mince words.

“[T]he inverse ratio rule, which is not part of the copyright statute, defies logic and creates uncertainty for the court and the parties…” ⁵ and quoting the Second Circuit “The logical outcome of the claimed principle is obviously that proof of actual access will render a showing of similarities entirely unnecessary.” ⁶

Which was precisely the case here. Under oath, Jimmy Page admitted that he had a copy of the Spirit album that contained “Taurus,” the song at issue. ⁷ Further, the trial jury found that both Page and Robert Plant had access to “Taurus,” ⁸ but ruled that the songs were not substantially similar to each other. ⁹ The inverse ratio rule might have mandated a different result.

Then there is the question of the relevancy of the rule to the internet age.

“[A]ccess is increasingly diluted in our interconnected world. Access is often proved by the wide dissemination of the copyrighted work…Given the ubiquity of ways to access media online…access may well be established by showing the work is available on demand.” ¹⁰

Are you listening Katy Perry?

But I digress.

Further, the Court reaffirms the rule that the Wolfe Trust’s copyright claim in Taurus was limited to the sheet music deposited with the Copyright Office, in concurrence with the ruling in the Blurred Lines case.

“The text is clear-for unpublished works the author must deposit one complete copy of such work. The purpose of the deposit is to make a record of the claimed copyright, provide notice to third parties and prevent confusion about the scope of copyright.” ¹¹

And

“Because the deposit copy defines the four corners of the Taurus copyright, it was not error…to decline [Plaintiff’s] request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantially similarity.” ¹²

This has led to speculation that many famous rock riffs may not be under copyright at all. These riffs, including Lynyrd Skynrd’s Free Bird, The Eagles Hotel California and The Door’s Riders on the Storm, are not found in the deposit copies filed with the Copyright Office. Thus, the argument goes, they are not protected by copyright. ¹³

Well, not quite.

Section 303 0f the Copyright Act provides the answer.

“Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302…The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of any musical work, dramatic work, or literary work embodied therein.”

So the copyright in the full version of Freebird, written over a period of time but recorded in its final version in 1973, ¹⁴ but never published and not registered for copyright, will last for the life of the authors plus 70 years after death. Credited to Ronnie Van Zant and Allen Collins, both of whom are deceased, gives us a copyright that will last until 2060. ¹⁵

Notice that Section 303 of the statute simply says “created” not created and “fixed,” as Section 102 does. So the portions of these songs not reflected in the deposit copy, are most certainly still protected by copyright. Certainly the sound recordings are proof enough of that. But in order to file an infringement lawsuit on those previously unregistered portions, an amended registration would be required.

So the great rock and roll free-for-all, will not be happening anytime soon.