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Skidmore v. Led Zeppelin - 905 F.3d 1116 (9th Cir. 2018)


Courts review for abuse of discretion the district court's formulation of jury instructions and review de novo whether the instructions misstate the law. As a general matter, prejudicial error in jury instructions occurs when looking to the instructions as a whole, the substance of the applicable law was not fairly and correctly covered. An error in instructing the jury in a civil case requires reversal unless the error is more probably than not harmless.


Skidmore, trustee of the estate of Randy Wolfe, a musician and a member of the band Spirit, who wrote the song “Taurus,” filed a copyright infringement complaint against Defendants, the band Led Zeppelin, individual members of the band, Super Hype Publishing, Inc., and Warner Music Group Corp., the parent company of Warner/Chappell Music, Inc., Atlantic Recording Corporation, and Rhino Entertainment Company, alleging that Led Zepellin had copied key key portions of its timeless hit "Stairway to Heaven" from the song "Taurus." The case proceeded to a jury trial, and the jury found that Skidmore, as Trustee of the song writer's Estate, owned the copyright to "Taurus," and that defendants had access to "Taurus," but that the two songs were not substantially similar under the extrinsic test. Consequently, the jury returned a verdict in favor of Defendants. Skidmore appealed, raising a host of alleged trial errors and challenging the district court's determination that for unpublished works under the Copyright Act of 1909 (1909 Act), the scope of the copyright was defined by the deposit copy.


  1. Was there substantial error in the district court’s instructions to the jury, thereby necessitating in part the reversal of the decision?
  2. Should substantial similarity between the two songs be proven using the copyright deposit copy?


1) Yes. 2) Yes.


The Court of Appeals for the Ninth Circuit held that certain of the district court's jury instructions were erroneous and prejudicial. First, in connection with the extrinsic test for substantial similarity, the district court prejudicially erred by failing to instruct the jury that the selection and arrangement of unprotectable musical elements are protectable. Second, the district court prejudicially erred in its instructions on originality. Anent the second issue, the Court held that the scope of copyright protection for an unpublished musical work under the Copyright Act of 1909 was defined by the deposit copy because copyright protection under the 1909 Act did not attach until either publication or registration. Therefore, the district court correctly ruled that sound recordings of "Taurus" as performed by Spirit could not be used to prove substantial similarity.

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