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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. A legal loophole

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Speaker 1: may leave some of the most recognizable and defining instrumental

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Speaker 1: solos and rock music up for grabs, like the guitar

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Speaker 1: introduction to the Eagles Hotel California or the sax solo

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Speaker 1: on Bruce Springsteen Is Born to Run. The question arises

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Speaker 1: because of a trial over the introduction to led Zeppelin's

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Speaker 1: classics Stare to Heaven. The band Spirit claimed that led

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Speaker 1: Zepplin stole one of the most recognizable music passages of

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Speaker 1: the past half century from its instrumental tourists, and when

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Speaker 1: guitarists and rock legend Jimmy Page took the stand, he

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Speaker 1: made the admission that could lead to some of the

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Speaker 1: most famous riffs and classic rock losing copyright protection and

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Speaker 1: being free for the taking. Joining me to explain this

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Speaker 1: is intellectual property, Attorney Terence ross A partner Captain Nuchin,

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Speaker 1: So Terry take us back to Pages testimony and what

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Speaker 1: it means. So the plaintifts attorney ask Page on standing

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Speaker 1: under oath whether certain passages from the song Stairway to Heaven,

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Speaker 1: particularly the finger pinking introduction and then the long classic

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Speaker 1: guitar solo towards the end, whether or not they were

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Speaker 1: covered or showed anywhere in the copyright registration that had

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Speaker 1: been filed with Nine States Copyright Office back in the

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Speaker 1: early seventies. And after looking through what's called the deposit

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Speaker 1: copy they had given to the Copyright Office, Jimmy Page

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Speaker 1: admitted that the introduction and the later guitar solo were

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Speaker 1: not there. They were not within the copyright registration and therefore,

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Speaker 1: arguably we're not copyrighted under the then nineteen o nine

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Speaker 1: Copyright Act. So why wouldn't the judge use a comparison

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Speaker 1: between the recording of Stairway to Heaven and the recording

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Speaker 1: of Tauruss. This was the legal conundrum that the judge faced.

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Speaker 1: The song Taurus was released in ninety eight. Stairway to

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Speaker 1: Heaven was released in ninete in the United States. Hard

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Speaker 1: as it is to believe nowadays, there was no copyright

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Speaker 1: protection in sound recordings prior to February of nineteen seventy two.

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Speaker 1: So the actual sound recordings the albums were not copyrightable.

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Speaker 1: What was copyright it was the sheet music. And therefore

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Speaker 1: the judge said, well, you're not allowed to play the

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Speaker 1: actual albums to the jury because that's not what's that

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Speaker 1: issue here and will only confuse the jury. The only

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Speaker 1: thing that's copyrighted is the sheet music, and you get

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Speaker 1: to show that to the jury. And that led to

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Speaker 1: this whole problem that Jimmy Page had on cross examination

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Speaker 1: in which he had to admit that the sheet music

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Speaker 1: for Stairway to Heaven does not include the intro or

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Speaker 1: the long guitar solo. The judge decided that for pre

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Speaker 1: unpublished songs, the deposited sheet music, which you talked about,

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Speaker 1: defines the scope of the copyright. Can one judge make

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Speaker 1: a determination like that that can affect countless songs, Well,

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Speaker 1: he had to make the determination in the context of

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Speaker 1: that specific trial. That law is very limited to California.

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Speaker 1: It is now on appeal to the Federal Appellate Court

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Speaker 1: for California, what is known as the Ninth Circuit Court

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Speaker 1: of Appeals, And just this last month, the Ninth Circuit

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Speaker 1: agreed with the parties that the entire panoply of Ninth

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Speaker 1: Circuit judges, all eleven judges, should sit on bonk and

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Speaker 1: decide this very important issue. But even then, June, that

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Speaker 1: decision would only govern the Western Party, United States, you know,

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Speaker 1: the Pacific coast of Hawaiian Alaska. Ultimately, the Supreme Court

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Speaker 1: will have to decide the answer. If this judge's opinion

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Speaker 1: is upheld. Does that mean that instrumental solos from some

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Speaker 1: classic rock songs may not be protected and could be

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Speaker 1: used for say, ring tones or commercials? Are we going

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Speaker 1: to hear Clarence clement sax solo on boorn to run

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Speaker 1: as a ring tone? I think there's a very real

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Speaker 1: risk of that. Any recording prior to Sevy work fift

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Speaker 1: is certainly at risk, and in addition, anything before January

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Speaker 1: one might also be at risk, depending on which legal

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Speaker 1: theories adopted by the Ninth Circuit. It is this irony

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Speaker 1: that during the golden period of rock and roll, the fifties,

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Speaker 1: the sixties, and the very early seventies, that we did

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Speaker 1: not provide copyright protection in this country for recordings. We

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Speaker 1: limited copyright protection to sheet music, and unfortunately, many rock

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Speaker 1: musicians perhaps with bad counsel from lawyers did not properly

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Speaker 1: take the right steps to deposit the right type of

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Speaker 1: sheet music with the copyright officers to get full copyright protection.

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Speaker 1: Anybody who's played in high school orchestra will have in

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Speaker 1: their mind sheep music that is very lengthy, very detailed,

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Speaker 1: sets out tempo, has multiple types of instruments being shown.

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Speaker 1: That's not what the rock musicians of the sixties and

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Speaker 1: seventies send to do. They tended to submit a piece

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Speaker 1: of sheet music that was typically for piano. It was

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Speaker 1: only the melody did not include even tempo, and let

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Speaker 1: alone beat or harmony or multiple instruments, and therefore that

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Speaker 1: bare bones submission under this judge's ruling would control the

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Speaker 1: extent of copyright here in the twenty one century. Terry,

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Speaker 1: let's talk a little bit about the defense that led

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Speaker 1: Zeppelin is putting on now, which is odd to some. Well,

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Speaker 1: it's very odd. There was a U. S. Army officer

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Speaker 1: in the height of the Vietnam War who actually said

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Speaker 1: to reporters, we had to destroy the village in order

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Speaker 1: to save it. And that's exactly the defense that has

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Speaker 1: been adopted here by led Zeppelin's attorneys. They are essentially

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Speaker 1: saying that the Taurus song by Spirit has no copyright

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Speaker 1: with respect to the particular guitar elements at issue because

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Speaker 1: their deposit copy at the Copyright Office their sheet music

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Speaker 1: did not include that. That opens up an attack on

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Speaker 1: all of led Zeppelin's copyrights because, as Jimmy Page admitted

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Speaker 1: at the trial, the sheet music they deposited with the

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Speaker 1: copyright office often did not encompass everything that was on

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Speaker 1: the recording, and so this defense, in order to avoid

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Speaker 1: copyright infringement is in effect tearing down the copyrights that

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Speaker 1: led Zeppelin its cell phones. It's a very curious approach.

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Speaker 1: What do you feel the reasonable or the correct decision

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Speaker 1: should be here at the Ninth Circuit. So the challenge

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Speaker 1: that the Ninth Circuit faces is to balance adequate protection

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Speaker 1: against over inclusive protection. And they are really facing a

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Speaker 1: hard call on whether or not to allow juries to

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Speaker 1: listen to sound recordings because the sound recordings are not

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Speaker 1: themselves copyright, it's only the sheet music. And in this case,

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Speaker 1: what happened is a pianist came in and played the

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Speaker 1: sheet music and it founded nothing like the actual sound recordings.

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Speaker 1: So at least with respect of the genre of classic rock.

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Speaker 1: The Ninth Circuit faces a very difficult challenge that may

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Speaker 1: end up in allowing the free taking of many classic

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Speaker 1: rock riffs. It's gonna be interesting to see how the

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Speaker 1: court comes out. It's going to be fascinating. Thank you

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Speaker 1: so much for that explanation to a really complicated story.

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Speaker 1: That's Terence Ross is an intellectual property attorney and a

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Speaker 1: partner at Caton u Chin. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple podcast, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg