Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: The epic copyright battle over Led Zeppelin's iconic Stairway to Heaven,
Speaker 1: one jury trial and two replays at the Ninth Circuit
Speaker 1: has resulted in a win for the band and for
Speaker 1: the music industry. Joining me as intellectual property litigator Terence Ross,
Speaker 1: a partner at Caton Uchen Rosenman Terry. The plaintiff claim
Speaker 1: the songs were similar based on the combination of five
Speaker 1: common musical elements. What did the courts say about that? Well,
Speaker 1: the Court agreed with the jury's finding that these five
Speaker 1: individual elements were not substantially similar. Court went on to
Speaker 1: say that they were all relatively common building blocks in
Speaker 1: musical composition, and that therefore they really weren't protectable under
Speaker 1: the Copyright Act in the first place. Does that mean
Speaker 1: a few notes sequence can or cannot be copyrighted? The
Speaker 1: Court has specifically said and repeated in this case um
Speaker 1: that they've never used the word never extended copyright protection
Speaker 1: to just a few notes. The argument made on appeal
Speaker 1: here by the trustee for the plaintiff was that it
Speaker 1: wasn't merely a few notes that were copied. It was
Speaker 1: a purportedly unique combination of these five musical elements, which
Speaker 1: each in and of themselves might have been unprotectable, but
Speaker 1: when combined in a unique way, became copyrightable. And that
Speaker 1: that is why Stairway to Heaven infringed the copyright of
Speaker 1: the song Torus. So, now the Ninth Circuit had what's
Speaker 1: called the inverse ratio rule for copy cases for more
Speaker 1: than forty years. Did it reverse that in this case
Speaker 1: and explain what that is? That's probably what the scholars
Speaker 1: will say is the most boardant takeaway from this case
Speaker 1: that the Ninth circuits infamous inverse ratio rule has been
Speaker 1: aggregated completely overruled. Keep in mind that this decision was
Speaker 1: by the entire court of the Ninth Circuit of Big
Speaker 1: Court to start with, but all the active judges eleven
Speaker 1: judges participated in this and so it's a very important
Speaker 1: decision just on that basis alone. But what the inverse
Speaker 1: ratio rule said was if in these cases where you
Speaker 1: cannot prove direct copying where you know the person took
Speaker 1: something to xerox machine and copied it or you watch
Speaker 1: them hand copied it, where you have to show it
Speaker 1: sort of show circumstantial copying, and you have to prove
Speaker 1: that the defendant had both access to the work and
Speaker 1: substantial similarity. If you have a really lot of access,
Speaker 1: which was the case here, therefore you don't have to
Speaker 1: show as much similarity. That's the inverse ratio. Lots of access,
Speaker 1: less similarity, very little access, lots of similarity required. The
Speaker 1: vast majority of courts in the nation have rejected that rule,
Speaker 1: and the Ninth Circuit now joins them and says, you know,
Speaker 1: we've gotten it wrong for all these years, and it's
Speaker 1: twenty plus years now. We've had it wrong all those years,
Speaker 1: and we are now abrogating the inverse ratio rule for
Speaker 1: copyright cases. I thought it was interesting that the Appeals
Speaker 1: Court said that access has been deluded in the digital
Speaker 1: age because so many works are available on Netflix, on YouTube,
Speaker 1: on Spotify. It made a very interesting point, using the
Speaker 1: television show The Office as an example. It said essentially
Speaker 1: that and where you turn, you will find an episode
Speaker 1: of the Office, and therefore these highly accessible copyright it
Speaker 1: works like The Office take advantage of this inverse ratio
Speaker 1: rule unfairly as opposed to other works that aren't as accessible.
Speaker 1: In our digital world, and the copyright law was never
Speaker 1: intended to favor one class of works over another class
Speaker 1: of works, or one type of copyright over another copyright,
Speaker 1: and therefore the inverse ratio rule public policy grounds was wrong.
Speaker 1: And of course this is what all the other courts
Speaker 1: had been saying for twenty years now, and the Ninth
Speaker 1: Circuit just got around to figuring it out. Well, better
Speaker 1: late than never, as they say, right, we've talked before
Speaker 1: about copyright lawsuits at the music industry recently has called frivolous,
Speaker 1: like the Blurredlines trial in Will this decision clear that up?
Speaker 1: Will it make it better for the music industry? Well,
Speaker 1: it remains to be seen. The descent here two judges
Speaker 1: did dissent from the decisions that was nine to two.
Speaker 1: The descent specifically said that this ruling will, as it said,
Speaker 1: weaken copyright protection for musicians by robbing them of the
Speaker 1: ability to protect a unique way of combining musical elements.
Speaker 1: And this goes back to the finding by the majority
Speaker 1: that the way the combination of the five different musical
Speaker 1: building blocks was made was not really something that could
Speaker 1: be sued upon. Here. I think the descent, however, overstates
Speaker 1: the case, the majority did not say, under no circumstances
Speaker 1: could some combination of common musical elements be copyrightable. They
Speaker 1: did not say that. The descent seems to assume that
Speaker 1: they did. What they said was in this instance, we
Speaker 1: did not see at the trial record anything that indicated
Speaker 1: that the plaintiff had demonstrated that these five desperit common
Speaker 1: musical elements were combined in such a way that was
Speaker 1: then copied by led Zeppelin. And so I think that's
Speaker 1: the distinction, and therefore I think um to a certain extent,
Speaker 1: the descent is crying wolf here Terry. A court in
Speaker 1: New York has put off a trial involving Ed Sharon
Speaker 1: waiting for this decision. What are they waiting for? And
Speaker 1: does this answer it? Well, I don't know, um, if
Speaker 1: it will or it will not. They were not waiting
Speaker 1: on the decision on the inverse ratio rule, because the
Speaker 1: Second Circuit had already rejected that. Clearly, they were looking
Speaker 1: at the concept of whether or not a plane of
Speaker 1: should be entitled to get a jury instruction telling the
Speaker 1: jury that they should consider whether or not there's a
Speaker 1: certain selection of musical elements combined in such a way
Speaker 1: as to make them unique and therefore entitled to copyright protection.
Speaker 1: I'm not sure that there's the sort of clarity here
Speaker 1: in this decision that's going to help the New York Court,
Speaker 1: quite frankly, because I believe that the ruling by the
Speaker 1: Ninth Circuit is very fact specific to the led Zeppelin case. Terry,
Speaker 1: always a pleasure to speak to you. Thanks so much.
Speaker 1: That's Terence Ross. He's a partner at Caton muchen Rosamand
Speaker 1: thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg