Stairway to Hell? Gap in copyright law may leave parts of thousands of hit songs vulnerable to copying

Thousands of the most memorable riffs and solos known to music fans – including the iconic intro to Led Zeppelin’s “Stairway to Heaven” – may not be covered under copyright law.

In early June, the San Francisco Court of Appeals voted to have a rare 11-judge panel rehear a 2016 case, originally won by Led Zeppelin’s Jimmy Page and Robert Plant, suspending an earlier appeals decision. The appeal will be heard in September.

The only topic on which the court has asked the parties for briefs so far is the primacy of “deposit copies,” an archaic mechanism for documenting a song as it was recorded that was required for music copyrights prior to 1978.

The appeal has broader implications, and will no doubt have an impact on a high-profile New York case in which plaintiffs are demanding more than $100 million for the alleged theft of Marvin Gaye’s Let’s Get It On for Ed Sheeran’s hit Thinking Out Loud.

Rip-Off?

According to a feature story in Bloomberg Businessweek, “Rock Riff Rip-Off,” a Los Angeles judge said in 2016 it was irrelevant whether “Stairway” and the recording of a song members of the band Spirit said it had plagiarized, “even if the songs’ album recordings sounded alike.”

Other potential targets: the Eagles “Hotel California” and Bruce Springsteen’s “Born to Run” (below).

 

Intro Envy: The lack of notation in parts of some well-known songs on documents deposited in Washington have thrown their copyrights into limbo.

What mattered was whether Led Zeppelin writers Page and Plant had lifted the Spirit song as it had been written on a single page of music submitted to the U.S. Copyright Office in 1967. The Taurus “deposit copy,” as it’s called, is “a spare document handwritten by a record company scribe who listened to the record and then distilled it into only 124 notes of piano music.”

Led Zeppelin won at the 2016 trial, but the matter is not resolved, and the stakes seem to have actually increased as other riff-conscious hit-makers and those who may have come before them square off.

Copyright Coverage

“The reverse engineering [of the recorded music] was required to comply with U.S. law,” reports the magazine, which before 1978 allowed songs to be registered only via sheet music deposited in Washington. “When a pianist performed the Taurus deposit copy for jurors earlier in the 2016 trial, it didn’t sound much like the Spirit record, let alone Stairway,” the magazine said.

It was hoped that Led Zeppelin’s victory over allegations the band stole the opening chords of “Stairway to Heaven” may reverse the swell in copyright infringement lawsuits over pop songs that followed 2015’s “Blurred Lines” verdict in which Marvin Gaye’s estate won $5.3 million and 50% of future royalties of the Pharrell Williams and Robin Thicke song of the same name.

Orphaned Riffs

Are some of the most famous passages in rock history in fact not protected by copyright? And did this also apply to any number of other songs whose deposit copies were equally lacking?

Countless unregistered bits of song—guitar solos, bass lines, horn parts, background vocals—could be exposed to unscrupulous financial exploitation. Ring tones, TV ads, film soundtracks—or even entire new songs—could be made and sold from these orphaned riffs, the article asserts.

The Spirit versus Led Zeppelin copyright appeal is scheduled to be heard in San Francisco in September. Stay tuned for an inspired performance.

For the full Bloomberg Businessweek story, go here.

UPDATE:

On August 16 the Trump administration weighed in on the legal battle over “Stairway to Heaven,” with the Department of Justice siding with Led Zeppelin in their copyright dispute with the estate of late Spirit guitarist Randy (California) Wolfe.

Although an appeal of the lawsuit against Led Zeppelin is still ongoing, reports Rolling Stone, the Justice Department filed an amicus in support of previous judge’s ruling that stated that the copyrights of musical compositions prior to 1972 were only protected as sheet music; in 1972, Congress changed the law to protect sound recordings, NBC News reports.

A new trial in the five-year old dispute was still ordered.

Image source: Bloomberg Businessweek via U.S. Library of Congress; discogs.com

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