In a little-noticed moment during Led Zeppelin’s Stairway to Heaven plagiarism trial, a Guitar God inadvertently revealed that his industry’s most famous (and valuable) tunes were up for grabs. It was June 2016, on the third day of the proceedings in Los Angeles federal court, when Jimmy Page took the stand. He faced examination by attorney Francis Malofiy. At issue in the trial was whether Page had stolen the introduction of 1971’s Stairway from the obscure 1968 instrumental Taurus by the band Spirit.
To the frustration of Malofiy, the judge said it was irrelevant whether the songs’ album recordings sounded alike. What mattered was whether Page had lifted the Spirit song as it had been written on a single page of music submitted to the U.S. Copyright Office in 1967. The Taurus “deposit copy,” as it’s called, is a spare document handwritten by a record company scribe who listened to the record and then distilled it into only 124 notes of piano music. The reverse engineering was required to comply with U.S. law, which before 1978 allowed songs to be registered only via sheet music “deposited” in Washington. When a pianist performed the Taurus deposit copy for jurors earlier in the trial, it didn’t sound much like the Spirit record, let alone Stairway.
In a bind, Malofiy turned the issue on its head:
“I’d like to pull up Exhibit 2708, which is the Stairway to Heaven deposit copy,” he told the court. The sheet music appeared, projected on a screen between Page’s witness stand and the jury box. “Can you point to where on the deposit copy of Stairway to Heaven it indicates the solo?” Malofiy asked, referring to the electric guitar finale that’s considered one of Page’s crowning achievements.
“I’ll have to have a look,” Page said, then scanned the first bit. “Um, I think you need to scroll down one more.” The second folio came up on the screen. “Please scroll one more,” he said as more music appeared. “Please, one more,” he said again as the fourth and final bit came up. “OK. That’s it. I’ve read it.”
“You would agree that there’s no solo on the deposit copy … of Stairway to Heaven, which was deposited with the office?”
“Yeah, we—I agree with that. It’s not in there, no,” Page said.
Malofiy then pointed to the first measure. On the record, Stairway begins with a finger-picked introduction—one of the most recognizable musical passages of the past half-century, mimicked by millions of aspiring guitarists. That iconic intro, Malofiy said, “That’s not represented in the deposit copy?”
“No,” Page said. “You’re correct.”
Sitting in the courtroom that day, I couldn’t believe what I was hearing. Were some of the most famous passages in rock history really not protected by copyright? And did this also apply to any number of other songs whose deposit copies were certainly equally lacking? I felt as if someone had dropped $100 bills on the ground. Countless unregistered bits of song—guitar solos, bass lines, horn parts, background vocals—could be sitting out there exposed to unscrupulous financial exploitation. Ring tones, TV ads, film soundtracks—or even entire new songs—could be made and sold from these orphaned riffs. (...)
Led Zeppelin won at the 2016 trial, but the matter isn’t resolved, and the stakes seem to have actually grown. Malofiy appealed, and in September, a three-judge panel on the 9th U.S. Circuit Court of Appeals in San Francisco ordered a Stairway do-over trial for procedural reasons. At the heart of the judges’ decision was a potentially industry-changing declaration: For pre-1978 unpublished songs, the deposited sheet music “defines the scope of the copyright.”
That ruling set off second appeals by both sides. Led Zeppelin asked for the original verdict to be upheld. Malofiy asked the entire appeals court, and not only three judges, to decide on the narrow issue of deposit copies. In early June, the San Francisco appeals court voted to have a rare 11-judge panel rehear the case in September, suspending the earlier appeals decision. The only topic on which the court has asked the parties for briefs so far is the primacy of deposit copies. The litigation has broader implications, undergirding a high-profile New York case in which plaintiffs are demanding more than $100 million for the alleged theft of Marvin Gaye’s Let’s Get It On for Ed Sheeran’s hit Thinking Out Loud .
The irony is there may be no winning outcome for Led Zeppelin. As Page’s testimony showed, the harder his lawyers push for strict readings of the copyright sheet music, the more they weaken the protection for Stairway. They’re going all-out, too. The legal team for the band and its publisher, Warner Music Group Corp., wrote in a December filing about “the primacy of deposited sheet music” as a bedrock of their industry and how “contracts are entered into in reliance on the certainty that a copyright protects the copyrighted work.”
by Vernon Silver, Bloomberg | Read more:
Image: Library of Congress
[ed. Here's a side-by-side comparison of Taurus vs. Stairway (YouTube).]
