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Is the Supreme Court ready to make music history? One petitioner gives nine High Court justices such an opportunity without being subtle about it. Here are the opening notes of a new certified petition: “It may be fitting that the future of music copyright law is decided by a case involving rock’s most iconic song.” n’roll, ‘Stairway to Heaven’. “
The petition comes from Michael Skidmore, administrator of the Randy Craig Wolfe Trust – that is, he represents an interest formerly owned by Randy “California” Wolfe, singer-songwriter of rock band Spirit.
Wolfe is the author of a song “Taurus”, which many observers consider to be extremely similar in structure to the opening of Led Zeppelin’s “Stairway to Heaven”. But copyright is not that basic. Led Zeppelin won the trial in 2016, and the 9th Circuit Court of Appeals ruled in March that no new trial was necessary. It’s Skidmore coming up the legal stairs in search of nirvana.
Does he have a chance? A thin one maybe.
Skidmore believes he lost at trial because the jury couldn’t appreciate the real ‘Taurus’. Indeed, the trial judge found that only what had been filed with the US Copyright Office enjoyed protection under the 1909 Copyright Act. The petitioner believes that this is wrong and that the scope of copyright is not defined by any deposited score. In other words, the recording may be good proof of what was protected, and the jury should have heard the original “Taurus” recording. (It wasn’t until the mid-1970s that Congress changed the law and allowed sound recordings to fall under copyright. This is one of the main reasons it’s the genre. specific legal controversy that mainly arose for older songs, including “Got to Give by Marvin Gaye It Up.”)
But it is not the sum of it all.
Skidmore also believes he lost at trial because the jury was not properly briefed on the originality. Musical notes cannot be protected and often used note combinations are in the public domain. But when there is something unique about the selection and arrangement of these notes, it may be copyrighted. The judge didn’t tell the jury this before he began to deliberate. The cert petition depicts the opinion in the 9th Circuit bench as a “disaster for creatives whose talent is often the prey” and which “redefines without foundation[s] originality as a high bar for copyright protection. “
On the flip side, what the 9th Circuit effectively ruled was that Skidmore never presented the theory of selection and arrangement at trial, and therefore any objection to the jury’s instructions was quashed. . Also, the 9th Circuit did not really disagree with the theory of selection and arrangement, which was first formulated by the Supreme Court in a case involving telephone directories. Instead, the 9th Circuit said it was up to Skidmore to provide more explanation. As the notice stated, “presenting a ‘combination of unprotected material’ without explaining how those elements are specifically selected and arranged is nothing more than trying to enforce copyright in common material. “.
Skidmore’s petition was handled by a lawyer from Francis Alexander LLC, the same company that represented the plaintiff in the trial court. A lawyer with more experience with Supreme Court issues may have chosen to focus on circuit divisions. This one goes the other way, talking about how influential 9th Circuit “Stairway to Heaven” opinion has been, cited across the country in the ongoing copyright battle. of Ed Sheeran for allegedly lifting elements of “Let’s Get It On” by Marvin Gaye “for” Thinking Out Loud. Skidmore’s attorney writes: “Cases under the 1909 statute are current and will continue to be so for the foreseeable future, requiring this Court to settle the Ninth Circuit decision before the damage becomes irreversible.”
The Supreme Court’s review bid eschews hot areas of appeals like administrative law and statutory interpretation in favor of a disastrous warning about how the courts – including the “Hollywood circuit” – are abandoning them. long-standing copyright principles. The petition also presents its first question listing each year between 1909 and 2015.
Stylistic quirks aside, there’s a reason the 9th Circuit took two turns in this case, and there’s a reason the US Department of Justice took sides in the fight. A thorny legal question is certainly lurking. The petition could attract amicus briefs from outside groups (as they did at the lower levels) – musicians, intellectual property specialists, and perhaps even those interested in economic or racial justice. Much of this stems from the warnings presented here that if the scope of copyright is defined by what is deposited, “most songs composed before 1976 will lose their protection” and “this will have a greater impact on communities historically deprived of their rights (the black blues artists, for example, whom Led Zeppelin “borrowed” heavily and with which he sometimes had to be content) where the composition of the music was not done on paper. “
Read the full petition on THR.com.
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