WEBVTT - Led Zeppelin Wins ’Stairway to Heaven’ Copyright Case

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<v Speaker 1>This is Bloomberg Law with June Grosso from Bloomberg Radio.

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<v Speaker 1>The epic copyright battle over Led Zeppelin's iconic Stairway to Heaven,

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<v Speaker 1>one jury trial and two replays at the Ninth Circuit

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<v Speaker 1>has resulted in a win for the band and for

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<v Speaker 1>the music industry. Joining me as intellectual property litigator Terence Ross,

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<v Speaker 1>a partner at Caton Uchen Rosenman Terry. The plaintiff claim

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<v Speaker 1>the songs were similar based on the combination of five

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<v Speaker 1>common musical elements. What did the courts say about that? Well,

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<v Speaker 1>the Court agreed with the jury's finding that these five

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<v Speaker 1>individual elements were not substantially similar. Court went on to

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<v Speaker 1>say that they were all relatively common building blocks in

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<v Speaker 1>musical composition, and that therefore they really weren't protectable under

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<v Speaker 1>the Copyright Act in the first place. Does that mean

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<v Speaker 1>a few notes sequence can or cannot be copyrighted? The

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<v Speaker 1>Court has specifically said and repeated in this case um

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<v Speaker 1>that they've never used the word never extended copyright protection

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<v Speaker 1>to just a few notes. The argument made on appeal

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<v Speaker 1>here by the trustee for the plaintiff was that it

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<v Speaker 1>wasn't merely a few notes that were copied. It was

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<v Speaker 1>a purportedly unique combination of these five musical elements, which

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<v Speaker 1>each in and of themselves might have been unprotectable, but

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<v Speaker 1>when combined in a unique way, became copyrightable. And that

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<v Speaker 1>that is why Stairway to Heaven infringed the copyright of

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<v Speaker 1>the song Torus. So, now the Ninth Circuit had what's

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<v Speaker 1>called the inverse ratio rule for copy cases for more

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<v Speaker 1>than forty years. Did it reverse that in this case

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<v Speaker 1>and explain what that is? That's probably what the scholars

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<v Speaker 1>will say is the most boardant takeaway from this case

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<v Speaker 1>that the Ninth circuits infamous inverse ratio rule has been

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<v Speaker 1>aggregated completely overruled. Keep in mind that this decision was

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<v Speaker 1>by the entire court of the Ninth Circuit of Big

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<v Speaker 1>Court to start with, but all the active judges eleven

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<v Speaker 1>judges participated in this and so it's a very important

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<v Speaker 1>decision just on that basis alone. But what the inverse

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<v Speaker 1>ratio rule said was if in these cases where you

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<v Speaker 1>cannot prove direct copying where you know the person took

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<v Speaker 1>something to xerox machine and copied it or you watch

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<v Speaker 1>them hand copied it, where you have to show it

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<v Speaker 1>sort of show circumstantial copying, and you have to prove

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<v Speaker 1>that the defendant had both access to the work and

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<v Speaker 1>substantial similarity. If you have a really lot of access,

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<v Speaker 1>which was the case here, therefore you don't have to

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<v Speaker 1>show as much similarity. That's the inverse ratio. Lots of access,

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<v Speaker 1>less similarity, very little access, lots of similarity required. The

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<v Speaker 1>vast majority of courts in the nation have rejected that rule,

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<v Speaker 1>and the Ninth Circuit now joins them and says, you know,

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<v Speaker 1>we've gotten it wrong for all these years, and it's

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<v Speaker 1>twenty plus years now. We've had it wrong all those years,

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<v Speaker 1>and we are now abrogating the inverse ratio rule for

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<v Speaker 1>copyright cases. I thought it was interesting that the Appeals

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<v Speaker 1>Court said that access has been deluded in the digital

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<v Speaker 1>age because so many works are available on Netflix, on YouTube,

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<v Speaker 1>on Spotify. It made a very interesting point, using the

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<v Speaker 1>television show The Office as an example. It said essentially

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<v Speaker 1>that and where you turn, you will find an episode

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<v Speaker 1>of the Office, and therefore these highly accessible copyright it

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<v Speaker 1>works like The Office take advantage of this inverse ratio

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<v Speaker 1>rule unfairly as opposed to other works that aren't as accessible.

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<v Speaker 1>In our digital world, and the copyright law was never

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<v Speaker 1>intended to favor one class of works over another class

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<v Speaker 1>of works, or one type of copyright over another copyright,

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<v Speaker 1>and therefore the inverse ratio rule public policy grounds was wrong.

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<v Speaker 1>And of course this is what all the other courts

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<v Speaker 1>had been saying for twenty years now, and the Ninth

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<v Speaker 1>Circuit just got around to figuring it out. Well, better

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<v Speaker 1>late than never, as they say, right, we've talked before

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<v Speaker 1>about copyright lawsuits at the music industry recently has called frivolous,

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<v Speaker 1>like the Blurredlines trial in Will this decision clear that up?

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<v Speaker 1>Will it make it better for the music industry? Well,

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<v Speaker 1>it remains to be seen. The descent here two judges

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<v Speaker 1>did dissent from the decisions that was nine to two.

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<v Speaker 1>The descent specifically said that this ruling will, as it said,

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<v Speaker 1>weaken copyright protection for musicians by robbing them of the

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<v Speaker 1>ability to protect a unique way of combining musical elements.

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<v Speaker 1>And this goes back to the finding by the majority

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<v Speaker 1>that the way the combination of the five different musical

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<v Speaker 1>building blocks was made was not really something that could

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<v Speaker 1>be sued upon. Here. I think the descent, however, overstates

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<v Speaker 1>the case, the majority did not say, under no circumstances

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<v Speaker 1>could some combination of common musical elements be copyrightable. They

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<v Speaker 1>did not say that. The descent seems to assume that

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<v Speaker 1>they did. What they said was in this instance, we

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<v Speaker 1>did not see at the trial record anything that indicated

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<v Speaker 1>that the plaintiff had demonstrated that these five desperit common

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<v Speaker 1>musical elements were combined in such a way that was

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<v Speaker 1>then copied by led Zeppelin. And so I think that's

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<v Speaker 1>the distinction, and therefore I think um to a certain extent,

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<v Speaker 1>the descent is crying wolf here Terry. A court in

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<v Speaker 1>New York has put off a trial involving Ed Sharon

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<v Speaker 1>waiting for this decision. What are they waiting for? And

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<v Speaker 1>does this answer it? Well, I don't know, um, if

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<v Speaker 1>it will or it will not. They were not waiting

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<v Speaker 1>on the decision on the inverse ratio rule, because the

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<v Speaker 1>Second Circuit had already rejected that. Clearly, they were looking

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<v Speaker 1>at the concept of whether or not a plane of

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<v Speaker 1>should be entitled to get a jury instruction telling the

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<v Speaker 1>jury that they should consider whether or not there's a

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<v Speaker 1>certain selection of musical elements combined in such a way

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<v Speaker 1>as to make them unique and therefore entitled to copyright protection.

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<v Speaker 1>I'm not sure that there's the sort of clarity here

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<v Speaker 1>in this decision that's going to help the New York Court,

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<v Speaker 1>quite frankly, because I believe that the ruling by the

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<v Speaker 1>Ninth Circuit is very fact specific to the led Zeppelin case. Terry,

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<v Speaker 1>always a pleasure to speak to you. Thanks so much.

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<v Speaker 1>That's Terence Ross. He's a partner at Caton muchen Rosamand

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<v Speaker 1>thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg