The remaining living members of Led Zeppelin will be in court today (June 14) in Los Angeles for the opening day of the copyright infringement case brought against them by the estate of the late Spirit guitarist Randy California. Here's a full update on the case.
Michael Skidmore, on behalf of the estate of Randy Craig Wolfe, aka Randy California, the late guitarist of rock band Spirit, represented by Francis Alexander Malofiy, from Media in Pennsylvania. Skidmore, a former music journalist, has been representing Wolfe's estate since 2006.
The remaining members of Led Zeppelin: Jimmy Page and Robert Plant (it is unclear whether John Paul Jones will attend the trial since he has been removed from the case); represented by Helene Freeman, a partner in the Litigation Department at Phillips Nizer LLP in New York, and Peter J. Anderson from Santa Monica, California. Co-defendants: Super Hype Publishing Inc., Atlantic Records and Warner Music Group.
The case: Skidmore v. Led Zeppelin
Plaintiffs filed a case in 2014 in Los Angeles Federal District Court for copyright infringement and violation of the right of attribution against the surviving members of Led Zeppelin — James Patrick Page, Robert Anthony Plant and John Paul Jones – Super Hype Publishing and Warner Music Group. Plaintiffs claimed that the familiar opening notes of Stairway To Heaven, a track from the band's fourth album, is lifted from Spirit’s instrumental Taurus, composed by Wolfe and recorded in 1968 by Spirit.
The filing contended that Taurus had similarities with Stairway To Heaven and that Led Zeppelin must have heard the song since they performed a few shows with Spirit in 1968 (the band denies having heard the song).
On April 8, 2016, US District Judge R. Gary Klausner partially denied a motion for summary judgement presented by the defendants. Judge Klausner said that there were “enough similar protectable expression” between the two songs to justify that the case proceeded to jury.
But in pre-trial Judge Klausner also restricted significantly the scope of what was acceptable to be brought before the court. He discarded recordings of the songs to focus on the composition as registered with the Copyright Office in 1967 and said only recordings directly lifted from the sheet music would be taken into consideration. Judge Klausner also barred from testifying musicologist whose reports were based on the recordings. In addition, the jury will not hear about the band's consumption of substances such as alcohol and drugs, nor will they be told of the band's plagiarism track record.
Wolfe, who drowned in 1997 after trying to rescue his son during a surfing incident, did not file suit in his lifetime. Plaintiff says there is evidence that Wolfe composed the track in 1966 and performed it in 1967, before entering an exclusive agreement with music publisher Hollenbeck Music in 1967. The song later became part of Hollenbeck's catalogue and registered by Hollenbeck. This is an important detail because technically, the copyright in the song is vested in Hollenbeck as Wolfe was under a “work for hire” contract with the music publisher. However, the court did not consider this aspect as sufficient to not consider Wolfe as the rightful author of Taurus.
Lawyers Music Week spoke to suggest that the case should have fallen into the three-year statute of limitations on copyright cases applicable in the US if it had not benefited from a decision by the US Supreme Court regarding Martin Scorcese's movie Raging Bull, which reversed previous court decisions that ruled that plaintiffs had waited too long before filing copyright infringement cases and that there was a “rolling” statute of limitations (i.e. if a new infringement is committed, then it opens a three-year window to apply for a claim).
In this case, the window of opportunity for the plaintiffs came when Warner issued the remastered versions of Led Zeppelin's catalogue in 2014. One lawyer told Music Week that “this case is a land grab by the estate of Randy California and an abuse of the legal system by manipulating the concept of 'mastering'." But obviously that was not the opinion of Judge Klausner.
The trial was initially scheduled for May 10 and was moved to June 14.
This is a high-profile case due to the pedigree of the defendants. The most similar recent case was the one brought by the Marvin Gaye estate against Robin Thicke and Pharrell Williams for the similarities existing between Gaye's Got To Give It Up and Thicke's Blurred Lines. In March 2015, a Los Angeles federal jury found in favour of the plaintiffs and awarded Gaye's estate $7.4 million. Since then, the sum was reduced to $5.3m, and Thicke and Williams have appealed the verdict.
What also makes this case a landmark is that Led Zeppelin has had a history of “borrowing” lyrics or riffs in the past, including with such songs as The Lemon Song (Chester Arthur Burnett aka Howlin' Wolf), Babe I'm Gonna Leave You (Anne Bredon), You Shook Me and Whole Lotta Love (both Willie Dixon) and Dazed And Confused (now credited as “inspired by Jake Holmes”).
“The bad side for Led Zeppelin is that they borrowed frequently in the past and got caught. And they were not that forthcoming when confronted and made it difficult for some to get their rightful credit and payment,” says Chicago-based music lawyer Thomas R. Leavens, co-founder of law firm Leavens, Strand & Glover. However, since Judge Klausner rejected calls by the plaintiffs to include in the proceedings evidence that Led Zeppelin had in the past been infringing copyright, this history will not be discussed in court.
Leavens tells Music Week that the attitude of Thicke and Williams before the jury in 2015 did not serve them well because they made several arguments that did not win them the favour of the jury, and that the attitude of Page and Plant during the proceedings will be crucial. Leavens suspects that Page and Plant “will be prepared as being earnest and sympathetic but protective of their work.”
Based on what is known of the case, Leavens thinks that “plaintiff has a tough role on a lot of levels,” but adds that when dealing with a jury it is “very hard to know what the jury’s decision will be. In some case, [jurors] make up their mind early on and reject evidence shown during the trial. You may have worked for case on many years and understand all the nuances and then you talk to juror [after the trial] and they say 'Well, we had to pick an expert!'.”
Malofiy is asking for up to $40m in damages according to the New York Times, and for proper credit attribution on the song, which means that if successful, Wolfe's estate will subsequently see royalties starting to flow from 2014 onwards.