By: Peter L. Holmes, Esq.
In 2014, the band Led Zeppelin was sued by the estate of Randy Wolfe, who had been a guitarist in the band Spirit. The lawsuit involved an accusation of copyright infringement, specifically the assertion that Led Zeppelin’s hit song Stairway to Heaven infringed portions of Randy Wolfe’s registered copyright in the unpublished musical composition of Taurus, a song written by Wolfe and performed by his band Spirit.
The case was filed in the Eastern District of Pennsylvania and later transferred to the proper venue, the Central District of California. Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581, 589–90 (E.D. Pa. 2015). The jury returned a verdict for Led Zeppelin in the district court case, finding that the two songs were not substantially similar.
At the appellate court, following a decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, Skidmore filed a petition for rehearing or rehearing en banc before the full court, which was granted. Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2018), reh’g en banc granted, 925 F.3d 999 (9th Cir. 2019).
In its en banc decision, Skidmore v. Led Zeppelin et al., Case No. 16-56057, 16-56287 (9th Cir. Mar. 9, 2020), the United States Court of Appeals for the Ninth Circuit (the “Court”) held that under the 1909 Copyright Act, in effect at the time the musical composition of Taurus was registered, it is the deposit copy of the musical composition (submitted to the U.S. Copyright Office) that defines the scope of the copyright. Skidmore, Slip Op. at 20. Additionally, the en banc Court declined to overrule a refusal by the district court to provide an “inverse ratio rule” jury instruction and took the further action of derogating (eliminating) the rule entirely. Among the more notable issues addressed, the Court also (and controversially) concluded that the district court in failing to give a “selection and arrangement” jury instruction did not commit any error because plaintiff did not present a selection and arrangement theory at trial.
In Skidmore v. Led Zeppelin et al., the hammer of the gods has dropped with the en banc Court affirming the district court’s judgment in favor of Led Zeppelin.
“Copyright protection subsists . . . in original works of authorship” 17 U.S.C. § 102(a). Copyright does require at least a modicum of creativity and does not protect every aspect of a work; ideas, concepts, and common elements are excluded. See 17 U.S.C. § 102(b); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345–46 (1991). Nor does copyright extend to “common or trite” musical elements, Smith v. Jackson, 84 F.3d 1213, 1216 n.3 (9th Cir. 1996), or “commonplace elements that are firmly rooted in the genre’s tradition,” Williams v. Gaye, 895 F.3d 1106, 1140–41 (9th Cir. 2018) (Nguyen, J., dissenting). These building blocks belong in the public domain and cannot be exclusively appropriated by any particular author. See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003) (“[E]xpressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law”).
A copyright plaintiff may argue “infringement . . . based on original selection and arrangement of unprotected elements.” Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002) (quoting Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994)).
Copyright infringement requires “copying” and “unlawful appropriation.” Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018). As summarized by the Court,
In [the Ninth] circuit, we use a two-part test to determine whether the defendant’s work is substantially similar to the plaintiff’s copyrighted work. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). The first part, the extrinsic test, compares the objective similarities of specific expressive elements in the two works. Id. Crucially, because only substantial similarity in protectable expression may constitute actionable copying that results in infringement liability, “it is essential to distinguish between the protected and unprotected material in a plaintiff’s work.” Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). The second part, the intrinsic test, “test[s] for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008) (quoting Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994)). Both tests must be satisfied for the works to be deemed substantially similar. See Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1077 (9th Cir. 2006).[Skidmore, Slip Op. at 23.] .
In determining copyright infringement in the Ninth Circuit, the “inverse ratio rule” requires (or rather, as of the date of this decision, had required) “a lower standard of proof of substantial similarity when a high degree of access is shown.” Three Boys Music, 212 F.3d at 485 (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)).
In Skidmore, the Court utilized its en banc decision as an opportunity to clarify the role of access in the copyright infringement analysis — decoupling the determination of access from the question of whether there was unlawful appropriation of protected elements, quoting 3 William F. Patry, Patry on Copyright (“Patry”) § 9.91 (2017) (“The inverse ratio theory confuses fundamental principles of infringement analysis: access is relevant only in establishing the act of copying, not in establishing the degree thereof. Once copying is established, access is irrelevant and the inquiry shifts to the final stage of the infringement analysis, material appropriation.”). Skidmore, Slip Op. at 28-29.
Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary. See e.g., Three Boys Music, 212 F.3d at 485–86; Shaw v. Lindheim, 919 F.2d 1353, 1361–62 (9th Cir. 1990).[Skidmore, Slip Op. at 26.] ..
This decisive ruling is a potentially helpful clarification and, as the Court pointed out, the inverse ratio rule is not included in the copyright statute as part of the infringement determination. Unfortunately, the Court needlessly offered additional somewhat confused comments regarding the concept of “access” being “increasingly diluted in our digitally interconnected world” [Id. at 31] (seemingly, and irrelevantly in relation to the case at bar, conflating a possibility of access due to online availability to a near de facto inference of access):
… Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand.[Skidmore, Slip Op. at 31.] . .
However, as provided in Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) (cited, but not discussed, by the Court),
“To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). “Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that the plaintiff’s work has been widely disseminated.” Id.
“The evidence required to show widespread dissemination will vary from case to case.” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 847 (9th Cir. 2012). In most cases, the evidence of widespread dissemination centers on the degree of a work’s commercial success and on its distribution through radio, television, and other relevant mediums. See, e.g., Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003); Art Attacks Ink, 581 F.3d at 1144–45; Three Boys Music, 212 F.3d at 483.
We have also recognized a doctrinal variant that focuses on saturation in a relevant market in which both the plaintiff and the defendant participate. …
Thusly, Gollum, and the evil one, crept up and slipped away with traditional Ninth Circuit requirements in relation to establishing evidence of access. The Court’s remarks — superfluous if not outright dicta — in respect to online media and inferences of access appear problematic and legally untethered (citing Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) yet failing to meaningfully discuss and differentiate significantly factually distinguishable cases involving the wide dissemination of copyrighted works). Regardless, these remarks of the Court had no bearing on the outcome of this case. On examination, Led Zeppelin guitarist Jimmy Page
…candidly admitted to owning “a copy of the album that contains ‘Taurus,’ . . . in [his] collection,” though still denying “any knowledge of ‘Taurus.’” The jury found that both Page and Plant “had access to the musical composition Taurus before Stairway to Heaven was created.” Once the jury made that finding, the remaining questions on the jury verdict form related to substantial similarity of the works.
[Skidmore, Slip Op. at 25.] . .
Likely the most controversial aspect of Skidmore is the en banc Court’s conclusion that the district court committed no error by declining to instruct the jury on selection and arrangement, that is, “infringement . . . based on original selection and arrangement of unprotected elements.” Metcalf, 294 F.3d at 1074 (quoting Apple Computer, 35 F.3d at 1446). In coming to this conclusion, the Court indicated that Skidmore failed to properly invoke a selection and arrangement argument, and that he was not entitled to an instruction based on a legal theory that was not presented to the jury. Skidmore, Slip Op. at 47.
Concurring in part and dissenting in part, Judge Ikuta, joined by Judge Bea, pointed out several significant deficiencies in the conclusions and reasoning of the en banc Court and wrote that she dissented from Part IV(B) to (C) because, without plaintiff’s requested instruction on selection and arrangement, the jury was deprived of the opportunity to consider plaintiff’s central theory of the case, and the instructions given to the jury were misleading. Judge Ikuta wrote:
… Because Skidmore’s proposed instruction had a foundation in law and was supported by the evidence, the district court erred in declining to give it.
This error cut the heart out of Skidmore’s case. Without this instruction, the three instructions given by the court regarding the unprotectability of common elements (Instruction Nos. 16, 20 and 21) told the jury that a descending chromatic scale, arpeggios, and other common elements are not protected by copyright, and that the jury must disregard all such elements. In other words, the jury was told to disregard the precise elements that Skidmore’s experts testified had been combined in a unique and original way, and thus the district court improperly foreclosed the possibility that Taurus’s combination of a descending chromatic line (which skipped the note E) and an ascending line using memorable note pairs was protected. Therefore, while Instruction Nos. 16, 20 and 21 are correct statements of the law, they are misleading in omitting the principle that a combination of unprotected elements can be protected. As such, the jury instructions establish a legal principle that is erroneous, and if allowed to stand, establish a mistaken view of copyright protection. Reversal for a new trial is required.[Skidmore, Slip Op. at 65 (Ikuta, J., joined by Bea, J., concurring in part and dissenting in part).] .
All my love to the Ninth Circuit courts, but what’s with this latest lemon song they’re singing – or is it mostly a communication breakdown?
If you have any questions about this recent decision, or about copyright infringement or other intellectual property-related matters, please contact Peter L. Holmes. Peter is Counsel at Leech Tishman and a member of the Intellectual Property Practice Group. Peter is based in the LAX – El Segundo, CA office and can be reached at 424.738.4400 or via email at firstname.lastname@example.org.
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 The musical composition of Taurus was registered in December 1967 under the 1909 Copyright Act, in effect at the time, and a deposit copy of the musical composition was submitted to the U.S. Copyright Office. A single page of sheet music was submitted as the Taurus deposit copy.
 The United States Court of Appeals for the Ninth Circuit is the largest of the thirteen appeals courts in the United States’ federal court system. It hears cases from federal trials courts in nine western states and two Pacific Island jurisdictions. https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000135