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“It’s up to eight people in a box, and they may or may not know anything about music.”
-Attorney Howard King, Speaking to Billboard
For those of us of a certain age, this scene from Wayne's World sparks memories of our first experience with the iconic riff, the one that impressed our friends (especially the girls) once we mastered its intricate arpeggios, definitively proving we were now, indeed true guitarists. Given the recent lawsuit, it is ironic to note that, after the theatrical release, Led Zeppelin sent Paramount a cease and desist order, forcing all subsequent versions of this parody of an annoyed guitar salesmen to be re-dubbed with Mike Myers botching a few incomprehensibly distorted notes. One imagines that, had they trademarked the title, even the reference to the sign would have been cut...
There are many comparisons with this trial to the "Blurred Lines" case, in which Judith Finell, the prosecution's forensic musicologist, successfully argued the near-impossible. Due to the fact that the track in question, Marvin Gaye's "Got to Give Up," fell just short of the 1978 cutoff in which the studio recording itself is copyrightable, Finell was forced to present her case without ever actually playing the final recording to the jury. This is an unfortunate loophole in the 1976 Copyright Act, which did not retroactively give rights to the recording itself to compositions prior to its enactment. Instead, works created prior to 1978 had to follow the 1909 copyright act, an act that was created when recordings were in their infancy, and was actually brought about by threats to the sheet music industry from producers of player pianos. Manufacturers argued that they did not have to pay royalties for these devices, and Congress subsequently enacted the compulsory mechanical license to copyright owners, whereby anyone wishing to record someone else's music simply had to pay a licensing fee, and as long as the performance adhered to the same melody and lyrics, the performers did not need permission from the copyright owners. Moreover, only sound recordings made after 1972 are subject to any copyright protection.
...works created prior to 1978 had to follow the 1909 copyright act, an act that was created when recordings were in their infancy, and was actually brought about by threats to the sheet music industry from producers of player pianos.
Legal history aside, the end result is that, in infringement cases where the copyright was filed before 1978, the only admissible evidence in court is what the copyright owner submitted to the copyright office, which is most commonly presented as sheet music. This presents a rather difficult case for popular musicians, as many of the most recognizable elements of their music are not easily translated into notes. Moreover, court precedent has established that the written melody and the lyrics to a song are the two most important elements in defining copyright infringement. Other elements such as the tone or style of an instrument and general feel or style are not deemed copyrightable. Sound recordings after 1978 have a different kind of protection, particularly when dealing with licensing and sampling, but for both the "Blurred Lines" and "Taurus" cases, the only admissible evidence in court was the written sheet music, not the actual recording.
...for both the "Blurred Lines" and "Taurus" cases, the only admissible evidence in court was the written sheet music, not the actual recording.
Prosecuting attorney Francis Malofiy argued that the defense "won on a technicality," noting, "we proved they had access to the music, but the jury never heard the music." While Malofiy presents a compelling argument for legislatures, forensic musicologists must face this hurdle in proving substantial similarity in pre-1978 lawsuits. This will likely come up more often, since a 2014 Supreme Court ruling argued against the 1976 Copyright Act, which gave a three year statute of limitations from the time of publication for anyone to come forth with an infringement lawsuit. Their ruling argued that anyone with a potential infringement case can file suit if any subsequent infringement occurs, and if they win in court, can collect up to three years prior to the act of infringement. This means that, if an artist continues to make money off of a song, someone can sue. The case originally addressed a claim by the son of the screenwriter for Raging Bull, and the plaintiff, Michael Skidmore (acting on behalf of the Randy Wolfe Trust), argued that Led Zeppelin's re-release of their catalog on Rhino Records constituted continued infringement, thus giving them the opportunity to file suit.
Re-releasing a record is an obvious case for infringement, and I imagine others will come forth in the future and argue that licensing a song for use in film or television, which occurs more often than re-release, or perhaps any sale of a copy of a song or record, constitutes infringement. Skidmore quickly followed on the heels of the ruling and filed suit in 2014, arguing for a 1/3 credit for all royalties from 2011 to the present, as well as all future revenue. True revenues are rather difficult to determine, particularly when a song is a hit single, as it arguably adds to the valuation of both the album and the artist(s) in general. The numbers ranged from a mere $600,000 to the tens of millions for "Stairway," and in his closing remarks Malofiy argued for somewhere between three and ten million.
True revenues are rather difficult to determine, particularly when a song is a hit single, as it arguably adds to the valuation of both the album and the artist(s) in general.
With a clear case, the suit made it to court in June of 2016, with US District Judge R. Gary Klasner residing. Like any good celebrity trial, the courtroom drama was intense; there was even one moment during expert witness testimony for the defense in which a wandering fan made his way into the courtroom looking for Page to autograph his guitar. Circus aside, once the preliminaries were set (including the exclusion of the sound recording, and notably, instruction to not bring into evidence the many other lawsuits and settlements against Led Zeppelin for infringement), it was up to the prosecution to prove three things: 1. Proof of ownership of the copyright to "Taurus," 2. Proof the defendant had access to the copyrighted material, and 3. Evidence of substantial or striking similarity between the two guitar riffs.
Considering the first two briefly, the defense repeatedly argued that Skidmore did not even have ownership of the copyright to Taurus, and that it instead was held by the band's publisher, Hollenbeck Music. The prosecution presented a photocopy of the 1996 renewal, but the defense contested its legitimacy. As far as access, this remains a tricky element of copyright litigation. Access can be direct, in which the defendant admits to knowing the song, which was the case in the "Blurred Lines" trial, or circumstantial, which the prosecution argued for "Taurus." This was the key element to now famous testimony by members of Led Zeppelin. The two bands played at the same clubs on several dates, and Page admitted to owning a copy of the record containing "Taurus," but during testimony they insisted there was no direct contact with the work. Jurors seemed to have concluded here that, fuzzy memories of rock musicians nearly 50 years later aside, that there was a reasonable case for circumstantial evidence of access.
Jurors seemed to have concluded here that, fuzzy memories of rock musicians nearly 50 years later aside, that there was a reasonable case for circumstantial evidence of access.
The third element of proof of infringement is crucial to any case, and it is here that the prosecution failed. There are two levels of similarity, striking and substantial. In the case of striking, the infringer copied the work note for note (or through a sample), and there is no need to prove access, as it is an obvious case of infringement. The latter case constitutes the majority of lawsuits, and it is here where expert witness testimony is paramount to any case. (A third category, fragmented similarity, is commonly used when someone utilizes samples in their work.) The substantial similarity test is the greatest burden of proof for any plaintiff, as there are no clear outlines for how to objectively present such a case in the copyright law. Court precedent varies on this element, and it is oftentimes the most contested portion of trial proceedings, involving multiple expert witnesses arguing for extreme interpretations.
As an added difficulty in music copyright infringement cases, the substantial similarity test can only be applied to copyrightable elements of a composition, including melody and lyrics, and certain elements of harmony and rhythm. This is an important element that gets to the core philosophy of copyright law: the differentiation between an idea and an original expression of an idea. For example, if I record the common chord progression G-C-D, then submit it to the copyright office, I would not have a legitimate case to sue, for example, Lynyrd Skynyrd for "Sweet Home Alabama," or Johnny Cash for "Ring of Fire," simply because they use the same chord progression. The same thing goes for written text: I can't copyright and then sue anyone that types the sentence, "Justin Bieber isn't sorry for borrowing from White Hinterland," although in the case of smaller catchphrases such as "That's Hot," I could file for trademark, and if I dressed up exactly like Justin Bieber and performed a sound alike in public I could be liable for infringing on his likeness.
Now, if I'm John Denver and I'm stepping onto a PanAm flight and miss my girl, then pen the melody and lyrics to "Leaving on a Jet Plane" and set it to the same chords, I can sue anyone who composes a song that is substantially similar to the lyrics and melody, but I would not win a lawsuit against Johnny Cash because only the harmony is similar, thus not passing the substantial similarity test. Also, there is a common misconception known as the "six bar rule," whereby musicians have rumored among themselves that it is permissible to use up to six measures of music from another song. Courts have ruled against this argument, particularly with samples that are looped or a significant element of a song. The infamous case against Vanilla Ice for "Ice, Ice Baby" by Queen and David Bowie's "Under Pressure" is a good example.
...there is a common misconception known as the "six bar rule," whereby musicians have rumored among themselves that it is permissible to use up to six measures of music from another song.
To return to the case in question, the prosecution was faced with a rather daunting set of tasks: they had to prove not just substantial similarity, but also originality of expression, all without actually being able to simply put a CD on and play the two songs back-to-back! To do so they followed a strategy similar to ours here at Music Forensics: they called two expert witnesses, the first, Kevin Hanson, is a professional guitarists with many years of hands-on experience in the music industry. Hanson brought his guitar to court, played the two excerpts in question, and played a recording of the two played simultaneously, arguing that they were virtually identical. Upon cross examination, he admitted to being able to tell the two apart, but maintained that they were substantially similar. Having an expert witness with real world experience is an important element of music copyright infringement cases, and it is why we here at Music Forensics maintain a balance of practical and intellectual advice to our clients. A crucial element of the substantial similarity test is that the similarity can be detected by an ordinary observer, and it is important that any testimony or report balance intellectual with practical expert advice.
A crucial element of the substantial similarity test is that the similarity can be detected by an ordinary observer, and it is important that any testimony or report balance intellectual with practical expert advice.
The second expert witness to take the stand for the prosecution was Dr. Alexander Stewart, a forensic musicologist and professor at the University of Vermont. Stewart built upon the work of Judith Finell during the "Blurred Lines" case by arguing for a "constellation of similarities" between the two works. Since Finell could not play the music, she provided musical examples and then performed in court what she identified as 8 substantially similar elements that occur simultaneously in both works, thus forming a constellation of similarity between both songs. You can read the detailed report here, but in brief, she identified those elements as: Signature Phrase, Hooks, Hooks with Backup Vocals, Core Theme in "Blurred" and Backup Theme in "Give it Up," Backup Hooks, Bass Melodies, Keyboard Parts, and Unusual Percussion Choices. Last, she argued that each of these elements was a unique expression of an idea, and thus warranted copyright protection.
Dr. Stewart followed a similar approach to demonstrate the similarities between "Taurus" and "Stairway," noting that both of the guitar riffs contain a unique progression from E to A, a substantially similar descending bass line, and open with the same three chords. He also noted that both share a unique "decidedly 'classical' style, particularly evoking a Renaissance style." A helpful element of his testimony, along with that of Finell, is his approach to testimony. Dr. Stewart helped to clarify elements that an ordinary observer likely are to hear, but are unable to articulate, and it was largely through this initial report that Judge Klauser allowed the case to go to trial, noting that "the descending bass line is played at the same pitch, repeated twice, and separated by a short bridge in both songs." The essence of a forensic musicology report is to find a balance between music theory and everyday experience, and Dr. Stewart effectively conveyed what many people intuitively hear in the song comparison. In fact, one reporter went around Venice Beach here in Los Angeles and played "Taurus" to listeners, asking them if they recognized the piece, and a majority of them identified it as "Stairway to Heaven."
The essence of a forensic musicology report is to find a balance between music theory and everyday experience, and Dr. Stewart effectively conveyed what many people intuitively hear in the song comparison
Because certain elements of substantial similarity in music fall on - and apologies for the pun - blurred lines, opposing expert witness testimony is often quite contradictory. The defense called two witnesses to the stand, starting with esteemed producer Robert Mathes, who did manage to play an excerpt of the recording, albeit briefly, by attempting to play a 2012 video honoring Led Zeppelin at the Kennedy Center, a strategy that seemed more about establishing prestige, as it included shots of President Obama and the First Lady rocking out. The primary expert witness for the defense was Dr. Lawrence Ferrara, emeritus professor at NYU with a strong resume of expert witness experience. Dr. Ferrara followed a familiar strategy among forensic musicologists by presenting a detailed and intricate presentation including many complex theoretical examples both projected and played on the piano. Dr. Ferrara built his case on the "prior art" strategy, arguing that the building blocks of both compositions are not unique expressions of an idea, but can be found in many other examples. Some of the more amusing examples included "Chim Chim Cher-ee" from Mary Poppins, and the Rodgers and Hart standard, "My Funny Valentine," but the example that seemed to seal the deal was a 1963 version of the Appalachian folk tune, "To Catch a Shad," by the Modern Folk Quartet.
This argument is a common one that many, including Alex Ross in The New Yorker, have presented, but it does present several additional legal questions. For example, if the guitar riff was so similar to the other pieces, what exactly makes it copyrightable? Moreover, as Rolling Stone observed, the strategy could have backfired, leading the jury to find that "Led Zeppelin had no qualms bogarting whole chunks of preexisting compositions in the songwriting process that led to 'Stairway,'" and the comparisons could also provoke the owners of "Chim Chim Cher-ee" and "My Funny Valentine" to call their lawyers. The article also noted another important element of expert witness testimony involving popular music: Dr. Ferrara, as an expert in music theory, presented testimony that came across at times as "more of a collegiate lecture than testimony," and his dense analytical approach "proved confusing, and at times patronizing."
In the end, the jury concluded that the similarities were not substantial enough to warrant infringement, but the case just as easily could have found for the plaintiff. It is a testament to the skill involved with expert witness testimony, the balance of evidence and intuition, and the guidance of attorneys, to present their case in a way that gives light to the accusations. While jury trials do not create court precedent for future cases, the "constellation of similarities" argument did come from "Blurred Lines," and in the future we might see new cases that attempt to prove that the constellations do, in fact, align.
-Dr. Richard H Brown, June 2016