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Although the 1909 Act extended copyright protection against infringement beyond the mere reproduction of the sheet music, Congress did not provide that copyrighted works could be anything other than sheet music or, for an unpublished work, the musical composition transcribed in the deposit copy.
In 1971, Led Zeppelin released its fourth album; it contained the iconic song “Stairway to Heaven.” In May 2014, Michael Skidmore, the co-trustee of Randy Craig Wolfe Trust, filed a suit against defendants Led Zeppelin, James Patrick Page, Robert Anthony Plant, John Paul Jones, Super Hype Publishing, and the Warner Music Group Corporation as parent of Warner/Chappell Music, Inc. ("Warner/Chappell"), Atlantic Recording Corporation, and Rhino Entertainment Co. (collectively "Led Zeppelin"), alleging that “Stairway to Heaven” infringed the copyright in “Taurus,” an instrumental song written by Randy Wolfe in 1966 or 1967. Skidmore alleged direct, contributory, and vicarious copyright infringement. He also sought equitable relief for a claim that he titled "Right of Attribution—Equitable Relief—Falsification of Rock n' Roll History." Led Zeppelin disputed ownership, access, and substantial similarity. Led Zeppelin also alleged affirmative defenses, including independent creation, unclean hands, and laches. At the close of discovery, Led Zeppelin moved for summary judgment. The district court granted the motion in part and denied it in part. The district court dismissed the claims against defendants John Paul Jones, Super Hype Publishing, and Warner Music Group because they had not performed or distributed Stairway to Heaven within the three-year statute of limitations period preceding the filing of the complaint. The district court also granted summary judgment to Led Zeppelin on Skidmore's "Right of Attribution—Equitable Relief: Falsification of Rock n' Roll History" claim. Although the claim was "creatively termed" and "inventive" according to the district court, a right of attribution claim under the Copyright Act extended only to visual arts. At the close of trial, the district court discussed with counsel the intended jury instructions. The district court did not give the proposed instructions on the inverse ratio rule and the selection and arrangement of unprotectable elements. Skidmore objected to the district court’s decision to omit an inverse ratio instruction but did not do so as to the omitted selection and arrangement instruction. The jury returned a verdict for Led Zeppelin. In special interrogatories, the jury found that Skidmore owned the copyright to Taurus and that Led Zeppelin had access to Taurus, but that the two songs were not substantially similar under the extrinsic test. Following the verdict, the district court entered a judgment and an amended judgment. Skidmore appealed from the amended judgment.
Under the circumstances, did the district court err in ruling in favor of Led Zeppelin?
The en banc court held that the 1909 Copyright Act, which did not protect sound recordings, rather than the 1976 Copyright Act, controlled its analysis because the copyright at issue was for the unpublished musical composition of Taurus, which was registered in 1967. The scope of the copyright in the unpublished work was defined by the deposit copy, which in the case of Taurus consisted of only one page of music. Accordingly, it was not error for the district court to decline plaintiff's request to play sound recordings of the Taurus performance that contained further embellishments or to admit the recordings on the issue of substantial similarity. Moreover, the court held that proof of copyright infringement required plaintiff to show: (1) that he owned a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work. The en banc court explained that the second prong contained two separate components: "copying" and "unlawful appropriation." A plaintiff may prove copying circumstantially by showing access and striking similarity. The hallmark of "unlawful appropriation" was that the works shared substantial similarities. Both an extrinsic and an intrinsic test must be satisfied for the works to be deemed substantially similar. In the case at bar, the court noted that in answer to the question of whether "original elements of the musical composition Taurus were extrinsically similar to Stairway to Heaven," the jury said no. Because the extrinsic test was not satisfied, the jury did not reach the intrinsic test. Accordingly, the court en banc affirmed the district court’s judgment.