Like most boys of my vintage, I grew up as a classic rock fan. Led Zeppelin has been in my blood since I was thirteen. The words and music of Stairway to Heaven is burned into my brain. When it comes on the radio, I can sing every single word, and I can hum every single bar of the melody and solos. It was one of the first, if not the first, song I learned to “play” on a guitar. That opening lead line is about as classic as it gets, and why I wanted to learn how to play the guitar. Not even the whole song, just that intro! If you listen very hard, the tune will come to you at last. I bet you are humming it right now.

I can remember dancing to the song at my middle school dance in the ’80s. It starts out as a slow dance, and then it rocks out. What do you do? You’re slow dancing with someone, the song has a bridge, and then shifts to hard, heavy rock. You’re standing there awkwardly with your date, and you’re like, ‘Okay, how do we do this now?’ 

That’s the classic Stairway to Heaven scene in my head. Today, my kids know that song. This is legendary music that spans generations. It’s a monumental song in the history of music, and its reach spans generations.

That’s why this case spoke to me!

The Case

Spirit brought a copyright infringement case against Led Zeppelin that claimed the opening lead lines of Stairway to Heaven were lifted from its song Taurus. It is just a short snippet that is allegedly infringing Spirit’s copyright. Because it is in the intro, you only hear that intro riff once, right up there at the front of the song, and it is not repeated.  Listening to the two melodies side by side, I admit they sound similar.

If we were to compare this case to a similar copyright infringement case between Katy Perry and Flame, I would say, trying to be as objective as I can, that Stairway to Heaven was much closer to the Spirit song than Katy Perry was to Flame.  See the link below for my article on Katy.

Related: Katy Perry Escapes Dark Horse Copyright Verdict 

As discussed in more detail below, the jury was never allowed to hear the actual recordings of these two songs.  If they were allowed to listen to the Stairway to Heaven intro and the Taurus intro side by side, it certainly would have changed the case.  They would have had a much easier time telling that the two lead lines were very similar.  When you dig into the music, there is merely a subtle difference in the melody; the last note is the only real difference. The tone of the guitar is very similar; the pieces are very similar.  

Here is a comparison on YouTube for you to listen to

What was also surprising to me after hearing the two lead lines was that Led Zeppelin and Spirit not only knew each other but also were tour buddies during the time period the alleged copying occurred! Just anecdotally, you think, ‘Well, that’s copying.’ Access is a vital component of copyright infringement. If you create something by yourself that’s identical to someone else’s, but you never had access to the original to copy it, you’re unlikely to be found guilty of infringing copyright. Independent creation is a defense to copyright infringement.  

Why Was The Jury Not Allowed To Hear The Songs or Evidence About the Bands’ Relationship? 

Led Zeppelin was found not to be infringing on Spirits’ copyright, and there was much hand waving and yelling about Led Zeppelin winning on a technicality. Well, that is not entirely true; the law is the law. Led Zeppelin’s legal team did not use a technicality – they just used the proper law. 

Stairway to Heaven and Taurus were both made before 1973 when the copyright law changed to include recorded material. During the case, the judge had to apply the prior version of the copyright law from 1903! 

Wait, what . . .!

In 1903 there was no such thing as a sound recording, so the 1903 copyright law only covered written materials. So the jury could view the sheet music, but not listen to the actual song recordings. What average person can actually read sheet music effectively, let alone make a comparison as to similarity under a 1903 law? Spirit did not have the right to play the songs in court, and unfortunately, Spirit’s lawyer knew that going in. If the alleged violation had been ten years later, it would have been a completely different set of rules to follow, and the judgment may have been different. 

Likewise, and what probably helped Led Zeppelin the most in this case, the court decided to abandon a long-held legal principle regarding the role ‘access’ could play in a copyright determination. This resulted in the jury not being able to hear the evidence about the relationship between the two bands and what might have led to further evidence of access to the specific song. So, left only with the sheet music, they understandably concluded no infringement.

When I see the correct laws applied and upheld, such as this case, it gives me some comfort, knowing that the rule of law is still in place. Us lawyers, that’s how we function. If the courts don’t follow the rules, our whole business model breaks down. I have to know that other people are going to follow the same standards and regulations that I’m following: they will follow the law to the letter. That’s the only way it works.

Related: Taylor Swift, Big Machine and Audible: The Battle over Copyright Control

My Judgment

The jury’s decision was probably correct based on the evidence they were allowed to hear at the time. The jury was not allowed to listen to the evidence that the bands toured together, in addition to not being allowed to listen to the recordings. That is critical. Based on the evidence they heard, and following the law, they were supposed to follow – they made the right decision.

As a matter of public policy, it doesn’t feel like the right decision, but reasonable minds can differ. Cause you know, sometimes words have two meanings. As a matter of being a Stairway to Heaven and Led Zeppelin fan… I think it was totally the right decision. 

If I were a member of the jury and had been able to listen to the riffs during the trial, and I knew about the bands touring together, to be honest, I probably would have ruled against Led Zeppelin myself, because even for a fan like me, there are two paths you can go by and sometimes all of our thoughts are misgiving

The Take-Away For Creatives 

  1. Understand the current state of the law and how it applies to your creation. Do your research before taking the matter before a court.
  2. Remember that that law might be interpreted differently depending on where you reside and where you create your work of art. There are 12 circuits in the USA; all have slightly different interpretations for issues that get complicated like this. Different facts will have different levels of impact depending on where you reside and where you bring the case. 
  3. Find out the best state to sue for copyright infringement. There might be jurisdictions where the facts and the application of the law are a little more beneficial to your situation, and you might be able to sue in a different venue that would be more beneficial to you.
  4. Know whether you have jurisdiction in the state you want to sue them in. Does the court have authority against that person?