WEBVTT - Why Rock’s Greatest Riffs May Be Up for Grabs

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. A legal loophole

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<v Speaker 1>may leave some of the most recognizable and defining instrumental

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<v Speaker 1>solos and rock music up for grabs, like the guitar

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<v Speaker 1>introduction to the Eagles Hotel California or the sax solo

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<v Speaker 1>on Bruce Springsteen Is Born to Run. The question arises

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<v Speaker 1>because of a trial over the introduction to led Zeppelin's

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<v Speaker 1>classics Stare to Heaven. The band Spirit claimed that led

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<v Speaker 1>Zepplin stole one of the most recognizable music passages of

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<v Speaker 1>the past half century from its instrumental tourists, and when

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<v Speaker 1>guitarists and rock legend Jimmy Page took the stand, he

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<v Speaker 1>made the admission that could lead to some of the

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<v Speaker 1>most famous riffs and classic rock losing copyright protection and

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<v Speaker 1>being free for the taking. Joining me to explain this

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<v Speaker 1>is intellectual property, Attorney Terence ross A partner Captain Nuchin,

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<v Speaker 1>So Terry take us back to Pages testimony and what

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<v Speaker 1>it means. So the plaintifts attorney ask Page on standing

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<v Speaker 1>under oath whether certain passages from the song Stairway to Heaven,

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<v Speaker 1>particularly the finger pinking introduction and then the long classic

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<v Speaker 1>guitar solo towards the end, whether or not they were

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<v Speaker 1>covered or showed anywhere in the copyright registration that had

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<v Speaker 1>been filed with Nine States Copyright Office back in the

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<v Speaker 1>early seventies. And after looking through what's called the deposit

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<v Speaker 1>copy they had given to the Copyright Office, Jimmy Page

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<v Speaker 1>admitted that the introduction and the later guitar solo were

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<v Speaker 1>not there. They were not within the copyright registration and therefore,

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<v Speaker 1>arguably we're not copyrighted under the then nineteen o nine

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<v Speaker 1>Copyright Act. So why wouldn't the judge use a comparison

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<v Speaker 1>between the recording of Stairway to Heaven and the recording

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<v Speaker 1>of Tauruss. This was the legal conundrum that the judge faced.

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<v Speaker 1>The song Taurus was released in ninety eight. Stairway to

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<v Speaker 1>Heaven was released in ninete in the United States. Hard

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<v Speaker 1>as it is to believe nowadays, there was no copyright

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<v Speaker 1>protection in sound recordings prior to February of nineteen seventy two.

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<v Speaker 1>So the actual sound recordings the albums were not copyrightable.

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<v Speaker 1>What was copyright it was the sheet music. And therefore

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<v Speaker 1>the judge said, well, you're not allowed to play the

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<v Speaker 1>actual albums to the jury because that's not what's that

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<v Speaker 1>issue here and will only confuse the jury. The only

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<v Speaker 1>thing that's copyrighted is the sheet music, and you get

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<v Speaker 1>to show that to the jury. And that led to

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<v Speaker 1>this whole problem that Jimmy Page had on cross examination

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<v Speaker 1>in which he had to admit that the sheet music

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<v Speaker 1>for Stairway to Heaven does not include the intro or

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<v Speaker 1>the long guitar solo. The judge decided that for pre

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<v Speaker 1>unpublished songs, the deposited sheet music, which you talked about,

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<v Speaker 1>defines the scope of the copyright. Can one judge make

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<v Speaker 1>a determination like that that can affect countless songs, Well,

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<v Speaker 1>he had to make the determination in the context of

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<v Speaker 1>that specific trial. That law is very limited to California.

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<v Speaker 1>It is now on appeal to the Federal Appellate Court

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<v Speaker 1>for California, what is known as the Ninth Circuit Court

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<v Speaker 1>of Appeals, And just this last month, the Ninth Circuit

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<v Speaker 1>agreed with the parties that the entire panoply of Ninth

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<v Speaker 1>Circuit judges, all eleven judges, should sit on bonk and

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<v Speaker 1>decide this very important issue. But even then, June, that

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<v Speaker 1>decision would only govern the Western Party, United States, you know,

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<v Speaker 1>the Pacific coast of Hawaiian Alaska. Ultimately, the Supreme Court

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<v Speaker 1>will have to decide the answer. If this judge's opinion

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<v Speaker 1>is upheld. Does that mean that instrumental solos from some

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<v Speaker 1>classic rock songs may not be protected and could be

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<v Speaker 1>used for say, ring tones or commercials? Are we going

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<v Speaker 1>to hear Clarence clement sax solo on boorn to run

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<v Speaker 1>as a ring tone? I think there's a very real

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<v Speaker 1>risk of that. Any recording prior to Sevy work fift

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<v Speaker 1>is certainly at risk, and in addition, anything before January

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<v Speaker 1>one might also be at risk, depending on which legal

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<v Speaker 1>theories adopted by the Ninth Circuit. It is this irony

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<v Speaker 1>that during the golden period of rock and roll, the fifties,

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<v Speaker 1>the sixties, and the very early seventies, that we did

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<v Speaker 1>not provide copyright protection in this country for recordings. We

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<v Speaker 1>limited copyright protection to sheet music, and unfortunately, many rock

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<v Speaker 1>musicians perhaps with bad counsel from lawyers did not properly

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<v Speaker 1>take the right steps to deposit the right type of

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<v Speaker 1>sheet music with the copyright officers to get full copyright protection.

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<v Speaker 1>Anybody who's played in high school orchestra will have in

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<v Speaker 1>their mind sheep music that is very lengthy, very detailed,

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<v Speaker 1>sets out tempo, has multiple types of instruments being shown.

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<v Speaker 1>That's not what the rock musicians of the sixties and

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<v Speaker 1>seventies send to do. They tended to submit a piece

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<v Speaker 1>of sheet music that was typically for piano. It was

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<v Speaker 1>only the melody did not include even tempo, and let

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<v Speaker 1>alone beat or harmony or multiple instruments, and therefore that

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<v Speaker 1>bare bones submission under this judge's ruling would control the

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<v Speaker 1>extent of copyright here in the twenty one century. Terry,

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<v Speaker 1>let's talk a little bit about the defense that led

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<v Speaker 1>Zeppelin is putting on now, which is odd to some. Well,

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<v Speaker 1>it's very odd. There was a U. S. Army officer

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<v Speaker 1>in the height of the Vietnam War who actually said

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<v Speaker 1>to reporters, we had to destroy the village in order

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<v Speaker 1>to save it. And that's exactly the defense that has

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<v Speaker 1>been adopted here by led Zeppelin's attorneys. They are essentially

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<v Speaker 1>saying that the Taurus song by Spirit has no copyright

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<v Speaker 1>with respect to the particular guitar elements at issue because

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<v Speaker 1>their deposit copy at the Copyright Office their sheet music

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<v Speaker 1>did not include that. That opens up an attack on

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<v Speaker 1>all of led Zeppelin's copyrights because, as Jimmy Page admitted

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<v Speaker 1>at the trial, the sheet music they deposited with the

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<v Speaker 1>copyright office often did not encompass everything that was on

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<v Speaker 1>the recording, and so this defense, in order to avoid

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<v Speaker 1>copyright infringement is in effect tearing down the copyrights that

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<v Speaker 1>led Zeppelin its cell phones. It's a very curious approach.

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<v Speaker 1>What do you feel the reasonable or the correct decision

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<v Speaker 1>should be here at the Ninth Circuit. So the challenge

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<v Speaker 1>that the Ninth Circuit faces is to balance adequate protection

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<v Speaker 1>against over inclusive protection. And they are really facing a

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<v Speaker 1>hard call on whether or not to allow juries to

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<v Speaker 1>listen to sound recordings because the sound recordings are not

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

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<v Speaker 1>what happened is a pianist came in and played the

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<v Speaker 1>sheet music and it founded nothing like the actual sound recordings.

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<v Speaker 1>So at least with respect of the genre of classic rock.

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<v Speaker 1>The Ninth Circuit faces a very difficult challenge that may

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<v Speaker 1>end up in allowing the free taking of many classic

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<v Speaker 1>rock riffs. It's gonna be interesting to see how the

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<v Speaker 1>court comes out. It's going to be fascinating. Thank you

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<v Speaker 1>so much for that explanation to a really complicated story.

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<v Speaker 1>That's Terence Ross is an intellectual property attorney and a

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<v Speaker 1>partner at Caton u Chin. Thanks for listening to the

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<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple podcast, SoundCloud, and on Bloomberg dot com

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<v Speaker 1>slash podcast. I'm June Brosso. This is Bloomberg