Street Law will be publishing a series of blogs, reflecting the interests of its team members in their chosen subject. The sixth is on plagiarism in music and is written by Kelvin Tayag, Street Law Director.
Stairway to the Courts: Artistry, Plagiarism, and the Law
Songwriters throughout the ages utilize common chord progressions to build the foundation for both their music and emotional expression: major key for a little beer drinkin’ happiness, minor key for the sadness that comes when your Ford pickup truck’s battery dies, and a mix of both if you’re feeling real dangerous. One comes to ponder however, how many similar chord progressions, sounds, and written words amount to plagiarism, and how does the law reconcile this?
Michael Skidmore v. Led Zeppelin
To illustrate this question, we can point to a recent case that rocked (get it?) the music industry to its core: Michael Skidmore v. Led Zeppelin. The case involved a number of copyright issues, including the applicable US Copyright Act, the inverse ratio rule, the scope of music copyright and the standards for infringement. Back in 2014, Michael Skidmore - lead singer for the Southern rock band Spirit - brought an action against Led Zeppelin claiming that they copied Taurus in their song Stairway to Heaven and specifically, the descending, chromatic riff found in the intro of the song. Members of Spirit tenaciously argued that there would have been no way that Led Zeppelin could not have heard Taurus whilst on tour with them back in 1968/69. The US Ninth Circuit Court of Appeal upheld that Led Zeppelin's song Stairway to Heaven did not infringe the copyright of the instrumental song ‘Taurus.’ Let’s take a look at the law.
The Elements of Copyright Infringement
In order for a claimant to prove copyright infringement under the US Copyright Act 1909 (now the Copyright Act 1976), a two-part test is used to determine whether the defendant’s work is substantially similar. The first part compares the objective similarities of specific protectable elements in the two works, which requires distinguishing between protected and unprotected material, and the second part tests for similarity of expression from the point of view of the ordinary reasonable observer with no expert assistance.(1) Both parts must be satisfied for the works to be deemed substantially similar. In dealing with copying, the court highlighted that independent creation is a complete defence to infringement, and therefore a plaintiff must prove that a defendant copied the work. In the absence of direct evidence of copying, such as in this case, the plaintiff can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.(2)
With the Court’s ruling in favour of Led Zeppelin, coupled with the careful, procedural approach to copyright issues, will we be seeing a surge in copyright suits following this case? Not in one expert’s opinion. Kurt Dahl, a leading entertainment lawyer, commented that the decision in Skidmore was the correct one because it “slows down the ambulance chasing that has been happening in the music industry these last few years. A verdict against Zeppelin in this case could have truly opened the floodgates on these claims.”(3) Dahl continues that “The verdict is a good thing for creativity and art. Artists of all kinds, especially songwriters, need to be allowed some measure of borrowing. It’s asking an awful lot of musicians to clear their heads of everything that they’ve heard before when writing a song; to come at it with a clean slate.”(4) Following Skidmore, the case surely curbs the amount of “shark-like” infringement claims from the music world. There is also a case to be made that Skidmore serves as a cautionary tale for entertainment lawyers; cases of this caliber will most likely involve millions of dollars to make it through the court process.
As one can see from the verdict of Skidmore, it reaffirms the creative rights of creative people. What this case boiled down to was the chord progression found in both songs, and it’s clear that you can’t copyright chord progressions. Artists and songwriters borrow from one another, from their influences, from their mom, so it wouldn’t be entirely fair for the law to expect artists to completely write wholly original material - it’s just not possible. We’re all influenced by something, somebody, so, is it all plagiarism? Take me for example, my goal is to write an album as good as Neil Young’s Harvest, so you definitely hear inklings of country slide guitar in my album, A Season to Ourselves. But I’ll stop talking about this before someone comes after me.
(1) Hayleigh Bosher, Michael Skidmore v Led Zeppelin: Copyright infringement in music under US law. Journal of Intellectual Property Law & Practice, Volume 15, Issue 5, May 2020, Pages 321–323
(3) Kurt Dahl, Why the Led Zeppelin Plagiarism Verdict Was Right, and What it Means to You. Retrieved from: https://lawyerdrummer.com/