6 May 2020

RELATED expertise

Led Zeppelin band members and fans were relieved when a recent decision of the 9th US Circuit Court of Appeals preserved the jury verdict that the Led Zeppelin iconic rock song “Stairway to Heaven” did not infringe the copyright of the Spirit song, “Taurus” (the Stairway to Heaven case).

In a 9-2 decision the 9th US Circuit Court addressed a multitude of copyright issues including standards for infringement, the inverse ratio rule and the scope of music copyright before confirming that, despite band members performing at the same venues in the late 1960’s and early 1970’s, the “Stairway to Heaven” riff was not substantially similar to the eight measure passage at the beginning of “Taurus”.

Reminiscent of some of the copyright complexities raised in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2011] FCAFC 47 (the Land Down Under case) in which the Full Federal Court ruled that the distinctive Land Down Under riff was copied from two bars in the children’s song “Kookaburra Sits in the Old Gum Tree”, this is a timely reminder that copyright is a complex area of intellectual property law.

Copyright infringement – when is a whole lotta love too much?

In an age when musical content is readily available, issues of influence, subconscious copying and creativity frequently arise for creators of original musical content.

Unlike patents, designs and trade marks, in most jurisdictions copyright is not formally registered. This means there is generally no copyright register for would be users to search before using. As there are no registration requirements for the subsistence of copyright and as musical work is not defined in the Copyright Act 1968 (Cth) (the Copyright Act), song writers and composers have limited resources and guidance available on the issue of copyright infringement. Accordingly, they may resort to dinner party opinion polls to assist them in determining whether their original compositions amount to flattery or infringement.

The recent Stairway to Heaven case in the USA and the infamous Land Down Under case highlight the difficulties in assessing copyright infringement in the context of musical works and sound recordings.

The Copyright Act

The Copyright Act provides the legislative framework for copyright law in Australia. Amongst other things, it sets out certain exclusive rights for the owner of copyright in a work. The effect of the Copyright Act is that copyright in a literary, dramatic, musical or artistic work is infringed where a person who is not the owner of the copyright, and without licence from the owner of the copyright, reproduces a substantial part of the work (ss 10, 13, 14(1), 31(1)(a) and 36(1)). The Copyright Act is silent on what constitutes a substantial part. This is left to the courts to decide, and like all legal cases, turns closely on the relevant facts.

Copyright infringement basics

Following identification of the work in which copyright subsist, there are generally three key elements that must be satisfied to establish copyright infringement [see eg Elwood Clothing Pty Ltd v Cotton on Clothing Pty Ltd [2008] FCAFC 197]:

  • a causal connection between the two works;
  • an objective similarity between the two works; and
  • use by the second work of a substantial part of the first work.

Land Down Under case and Stairway to Heaven case

The Land Down Under case

In 2010, Larrikin Records brought a copyright infringement claim against Men At Work alleging infringement by the song “Down Under” of the Marion Sinclair Kookaburra Song [Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29]. The Federal Court in the first instance determined that there had been infringement by Men at Work. On appeal in 2011, the Full Court of the Federal Court of Australia upheld the original Federal Court decision in finding that there was indeed infringement. In late 2011, the High Court refused to grant special leave to EMI to appeal the decision to the High Court.

Stairway to Heaven case

In 2010, Michael Skidmore, a trustee representing the Randy Wolfe estate brought a claim against Led Zeppelin band members Robert Plant and Jimmy Page alleging infringement by the opening guitar riff of “Stairway to Heaven” of Spirit’s tune “Taurus”. In 2016, a US District Court found in favour of Led Zeppelin but this decision was later overturned by the 9th Circuit Court who ordered a new trial on the basis of incorrect jury instructions. The recent decision of the full 9th US Circuit Court confirmed that the “Stairway to Heaven” riff was not substantially similar to the eight measure passage at the beginning of “Taurus” and that there had been no infringement.

Riff and rifts – the tests as applied

Causal connection

Courts will look to incidental copying, including whether the defendant had access to the copyright protected work, where there is no direct evidence of copying.

In the Land Down Under case, a causal connection was established by reference to the fact that the band had sung “Kookaburra” in live performances of the “Down Under” song and given the “Down Under” music video featured a member of the band playing the flute riff in a gum tree.

In the Led Zeppelin case, the District Court allowed Skidmore to play various sound recordings for Page outside the presence of the jury. Page testified that he owned “a copy of the album that contained Taurus”, but denied “any knowledge of Taurus”.

Objective similarity

The second key principal is whether there is a sufficient degree of similarity between the two works. Objective similarity depends “to a large degree upon the aural perception of the judge and upon the expert evidence” and “is not to be determined by a note for note comparison but is to be determined by the eye as well as by the ear” (see for example Austin v Columbia Gramophone Co Ltd (1917-23)).

In the Land Down Under case, two music experts provided expert opinion as to the musical elements comprising each song, including by reference to melody, key tempo, harmony, context and structure. One expert said in his first report that “the resemblance is exact” and in his oral evidence described the melodies as “identical” and demonstrated this by singing the notes and playing them on the piano. Another expert’s evidence was to the same effect. Ultimately, it was found that there was a sufficient degree of objective similarity to the ordinary reasonably experienced listener between the two bars of “Kookaburra” and the flute riff in “Down Under” to satisfy the test for infringement.

In the Stairway to Heaven case, the question of substantial similarity was also dealt with by having two musicologists outline their respective analysis as to the musical elements in each song, including notes, melody, chord progression, structure, tempo, instrumentation and feel. Skidmore’s expert found the two musical compositions to be similar because five musical elements appeared in both songs. He testified that the two compositions had the same ‘pitch collection’.  Led Zeppelin’s musicologist testified that the two compositions were completely distinct and that the similarity in the ‘pitch collection’ was not musically meaningful. The jury returned a verdict in favour of Led Zeppelin and found that the two songs were not substantially similar under the extrinsic test.

Substantial part

The question of whether a substantial part of the alleged infringed musical work has been reproduced in the later work is a principal question in an infringement case with the emphasis on quality rather than quantity of what is taken [see for example, Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273].

In the Land Down Under case, the key issue for the Court was whether “Down Under” involved the reproduction in a material form of a substantial part of “Kookaburra”. The Court looked at the music expert opinion as to the quality of the part taken and confirmed that consideration of context, structure, tempo, melody, key, rhythm and harmony was appropriate in determining substantiality. The Court ultimately concluded that two bars of “Kookaburra” constituted a substantial part for the purposes of a copyright infringement claim.

The US Court dealt with the issue of substantial part in the substantial similarity test, as set out above.

Who Can It Be Now?

When the Land Down Under case was handed down, Men at Work must have wondered if their lyrics “Who can it be knocking at my door? Go ‘way, don’t come ’round here no more” prophetically referred to an unwelcome introduction to the world of copyright law.

The Stairway to Heaven case and the Land Down Under case each highlight that copyright is a complex and nuanced area of law. It involves a range of variables which each turn closely on the facts, which are often assessed by experts. These elements include an analysis of the musical elements in each song, such as notes, melodies, chord progressions, structure, tempo, instrumentation and feel. It could well include ‘the vibe’, but that’s a matter for film rather than music.

To add further complexity, these cases validate that even subconsciously using other original copyright works may lead to a finding of infringement.  If you need assistance managing your intellectual property rights, including if you consider someone has infringed your copyright, it is always prudent to seek the assistance of a specialist intellectual property lawyer.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2020