So I would argue that such a defense would amount to an improper appropriation of owners’ license rights without compensation.Ī variation on the fair use defense would be to consider Led Zeppelin’s introduction to “Stairway to Heaven” a “transformative use,” since every original work in some way borrows and builds upon what has come before. However, copyright owners are entitled, not just to sales of their originals, but to license their works for remuneration. Some suggest that short portions of compositions incorporated into recordings should be covered under the “fair use” limitations to copyright law to the extent they are insubstantial and their use is unlikely to adversely affect sales of the originals. However, a copy would usually be considered de minimis only if it is so meager and fragmentary that the average listener would not recognize its original source. Similarly, it could try to prove that the opening of “Stairway to Heaven” was independently developed by Led Zeppelin without reference to “Taurus.” Any borrowing from “Taurus” could be deemed a “ de minimis use” that is so minor as to be disregarded in the eyes of the law. For example, Led Zeppelin could claim the chord progression in “Taurus” is not original or not protectable under copyright law. If Spirit is able to meet the legal standard of proof of copyright infringement, Led Zeppelin would likely raise one or more affirmative defenses. However, the trier of fact will ultimately have to base its decision, not on the expert testimony, but on whether the works are “substantially similar” in the ears of ordinary members of the listening audience. Stairway to heaven by led zeplin trial#In the case at hand, should it reach the trial court, both parties will presumably present expert witnesses to analyze the respective recordings and testify how they are similar or dissimilar. There must also be a substantially similarity to the prior work sufficient to constitute improper appropriation, where “substantial” means substantial in degree as measured either qualitatively or quantitatively and “similarity” means similar in the ears of the ordinary member of the intended audience. Proof of copying is necessary but not sufficient to determine copyright infringement. In this case, there is ample evidence of access since it is well-documented that the two groups performed together the day after Christmas 1968 and four additional times in 1969, all at concerts and festivals where Spirit played “Taurus.” Where there is evidence of both access and similarities, the trier of fact must determine whether the similarities are sufficient to prove improper appropriation in the eyes of the law. Similarly, the more similarities that exist, the less access must be shown to prove copying. In other words, the more access a party had to a prior work, the less similarity must be shown to prove copying. The amount of access and similarity required to determine whether copying took place are inversely proportional. Many courts allow copying to be circumstantially proven with a two-part analysis based on evidence of access and similarity. So the next question is, what are the elements of a successful claim of copyright infringement? To determine infringement, courts have relied on the following two-prong test:Ĭopying can be proven by either direct evidence ( e.g., a party’s admission) or circumstantial evidence. Many listeners are convinced that Led Zeppelin copied the “Stairway to Heaven” opening directly from Spirit’s “Taurus.” Others believe the two works share commonplace musical elements and “Taurus” features a chord progression that is not protectable by copyright law. And part of Spirit’s lawsuit seeks an injunction to prohibit a scheduled reissue of Led Zeppelin’s albums that have been completely remastered by guitarist and producer Jimmy Page. This could still be very meaningful because published estimates peg the song’s historical earnings (including both sales and royalties) at over $562 million ( i.e., averaging over $13 million per year). Copyright Act, civil infringement actions must be “commenced within three years after the claim accrued.” The three year rule would effectively bar any recovery for alleged infringement during the first approximately 40 years of the song’s release and limit any potential recovery to new formats/releases of the recording over the last three years, as well as any future new formats/releases of the recording. Led Zeppelin first released “Stairway to Heaven” approximately 43 years ago, so the first question is, what is the statute of limitations for copyright infringement? Under The U.S.
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