1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

5
00:00:16,280 --> 00:00:33,760
Speaker 1: and on Bloomberg dot com slash podcasts. The epic copyright

6
00:00:33,800 --> 00:00:37,760
Speaker 1: battle over led Zeppelin's iconic Stairway to Heaven reached a

7
00:00:37,840 --> 00:00:40,960
Speaker 1: level few cases see and on bank hearing at the

8
00:00:41,080 --> 00:00:44,840
Speaker 1: Ninth Circuit Court of Appeals, eleven judges will discide whether

9
00:00:44,880 --> 00:00:48,239
Speaker 1: a new trial is necessary to determine whether led Zeppelin

10
00:00:48,360 --> 00:00:53,280
Speaker 1: ripped off the songs opening guitar riff from Spirits Instrumental Taurus.

11
00:01:04,319 --> 00:01:07,399
Speaker 1: One might have thought the issue was settled in when

12
00:01:07,400 --> 00:01:10,200
Speaker 1: a jury returned a verdict in favor of led Zeppelin,

13
00:01:10,520 --> 00:01:13,440
Speaker 1: but last year on appeal, a panel of three judges

14
00:01:13,480 --> 00:01:16,479
Speaker 1: on the Ninth Circuit ordered a new trial over errors

15
00:01:16,480 --> 00:01:19,480
Speaker 1: by the trial court. Now eleven judges will make that

16
00:01:19,560 --> 00:01:23,000
Speaker 1: decision at the hearing. Many of the judges seem skeptical

17
00:01:23,000 --> 00:01:25,959
Speaker 1: of the argument by the plaintiffs attorney that the jurors

18
00:01:25,959 --> 00:01:28,360
Speaker 1: should have been allowed to hear the recordings of both

19
00:01:28,440 --> 00:01:33,360
Speaker 1: songs at trial. Here's Judge Andrew Hurwitz, questioning Francis Malafy,

20
00:01:33,560 --> 00:01:36,080
Speaker 1: You've got to get your sound recording in in order

21
00:01:36,120 --> 00:01:38,120
Speaker 1: to win this case, don't you. We have to bring

22
00:01:38,120 --> 00:01:39,920
Speaker 1: in the best evidence and with the fair evidence. Well,

23
00:01:40,280 --> 00:01:42,360
Speaker 1: you got to get it into win, don't you. I

24
00:01:42,400 --> 00:01:45,680
Speaker 1: think so. But there is some leeway joining me as

25
00:01:45,720 --> 00:01:49,640
Speaker 1: intellectual property litigator Terence ross A partner Captain Nuchen and

26
00:01:49,720 --> 00:01:53,680
Speaker 1: Rosen Terry. A lot of people listen to that introductory

27
00:01:53,760 --> 00:01:56,760
Speaker 1: riff to Stairway to Heaven and the song Taurus and

28
00:01:56,800 --> 00:01:59,720
Speaker 1: say it sounds a lot alike, but there's a lot

29
00:01:59,800 --> 00:02:02,480
Speaker 1: more were to it. Then that the sound recordings weren't

30
00:02:02,520 --> 00:02:06,279
Speaker 1: even played for the jury. And that's the key here, June,

31
00:02:06,320 --> 00:02:09,720
Speaker 1: that's before the Ninth Circuit on Bank. Should the District

32
00:02:09,760 --> 00:02:13,120
Speaker 1: court judge, the trial judge have allowed the recordings to

33
00:02:13,200 --> 00:02:15,560
Speaker 1: be played to the jury. He did not. And the

34
00:02:15,639 --> 00:02:18,320
Speaker 1: reason he did not allow the recordings to be played

35
00:02:18,440 --> 00:02:22,040
Speaker 1: is because when these two songs came out, they were

36
00:02:22,080 --> 00:02:27,919
Speaker 1: prior to nWo. There was no copyright on recordings, and

37
00:02:27,960 --> 00:02:31,720
Speaker 1: so musical artists such as Jimmy Page and led Zeppelin

38
00:02:32,040 --> 00:02:34,840
Speaker 1: or this band Tars and their lead singer Randy Wolf.

39
00:02:35,040 --> 00:02:38,640
Speaker 1: They got copyright on the sheet music and not on

40
00:02:38,680 --> 00:02:41,520
Speaker 1: the recordings, and so the trial judge allowed the jury

41
00:02:41,560 --> 00:02:44,520
Speaker 1: to see the respect of sheet music, and he allowed

42
00:02:44,639 --> 00:02:48,920
Speaker 1: a musical expert to play those sheet music notes, and

43
00:02:49,000 --> 00:02:51,960
Speaker 1: did not allow the jury to actually hear the recorded

44
00:02:52,160 --> 00:02:54,919
Speaker 1: music because there was no copyright on them. And that's

45
00:02:54,919 --> 00:02:57,000
Speaker 1: what the dispute is all about. A lot of the

46
00:02:57,080 --> 00:03:01,760
Speaker 1: judges on this Ninth Circuit on Bank seemed really skeptical

47
00:03:01,880 --> 00:03:04,320
Speaker 1: that a new trial was necessary, and they were peppering

48
00:03:04,320 --> 00:03:08,800
Speaker 1: the plaintiff's lawyer with questions. You just don't know in

49
00:03:09,000 --> 00:03:12,880
Speaker 1: an oral argument whether a particular judge is asking you

50
00:03:12,919 --> 00:03:15,720
Speaker 1: the question that they really need to have answered, whether

51
00:03:15,720 --> 00:03:19,600
Speaker 1: they're playing devil's advocate. I clerked for the BC Circuit.

52
00:03:19,880 --> 00:03:22,520
Speaker 1: My judge used to always ask the tough questions of

53
00:03:22,560 --> 00:03:26,040
Speaker 1: both sides, no matter how he might come out eventually.

54
00:03:26,280 --> 00:03:29,320
Speaker 1: So we can't always look at the questioning from the

55
00:03:29,400 --> 00:03:32,720
Speaker 1: judges on a panel and read the tea leaves and

56
00:03:32,760 --> 00:03:35,040
Speaker 1: see how this could come out. But it did seem

57
00:03:35,120 --> 00:03:37,560
Speaker 1: to bother a lot of the judges that there's no

58
00:03:37,680 --> 00:03:41,680
Speaker 1: copyright on the recordings, and yet the plaintiff wanted the

59
00:03:41,720 --> 00:03:45,160
Speaker 1: recordings to be played to the jury. This case has

60
00:03:45,200 --> 00:03:48,160
Speaker 1: a lot of significance. What could come out of this

61
00:03:48,280 --> 00:03:51,760
Speaker 1: case that would be significant to other composers into the

62
00:03:51,840 --> 00:03:54,880
Speaker 1: music industry. So June, without a doubt, this is the

63
00:03:54,920 --> 00:04:02,960
Speaker 1: hottest case in the music industry for years. Artists, recording labels, producers,

64
00:04:03,000 --> 00:04:06,320
Speaker 1: songwriters are all paying attention to this case. It is

65
00:04:06,360 --> 00:04:10,040
Speaker 1: that significant. It is not merely the fate of these

66
00:04:10,160 --> 00:04:13,560
Speaker 1: pre nineteen seventy two copyrights and whether or not sound

67
00:04:13,600 --> 00:04:15,680
Speaker 1: recordings could be played to the jury when there's no

68
00:04:15,760 --> 00:04:19,200
Speaker 1: copyright on The issue is to what extent does a

69
00:04:19,400 --> 00:04:25,320
Speaker 1: copyright in a piece of music protect fundamental elements of

70
00:04:25,480 --> 00:04:30,080
Speaker 1: music itself? In other words, how much originality is required?

71
00:04:30,440 --> 00:04:36,359
Speaker 1: Can you copy right certain types of standard musical building

72
00:04:36,440 --> 00:04:39,839
Speaker 1: blocks that all bands use? And we haven't had a

73
00:04:39,960 --> 00:04:43,320
Speaker 1: court case that has presented exactly that issue in a

74
00:04:43,360 --> 00:04:46,119
Speaker 1: long time. And here you have one of the most

75
00:04:46,200 --> 00:04:50,240
Speaker 1: important cases, with a very large number of judges, a

76
00:04:50,400 --> 00:04:53,120
Speaker 1: court that handles most of the music cases the United

77
00:04:53,120 --> 00:04:56,200
Speaker 1: States actually ready to give us a decision. Now. A

78
00:04:56,320 --> 00:05:00,560
Speaker 1: New York federal judge put the trial upcoming trial over

79
00:05:00,800 --> 00:05:04,320
Speaker 1: ed Shearing's thinking out loud on hold until this case

80
00:05:04,480 --> 00:05:07,760
Speaker 1: is decided by the Ninth Circuit. But a judge in

81
00:05:07,839 --> 00:05:12,599
Speaker 1: Manhattan doesn't have to follow the Ninth Circuit, that's absolutely

82
00:05:12,640 --> 00:05:15,599
Speaker 1: so why did he do that Because this is a

83
00:05:15,760 --> 00:05:19,560
Speaker 1: unique case, a unique situation, and he would want it

84
00:05:19,600 --> 00:05:21,640
Speaker 1: to obtain as much guides as he could in the

85
00:05:21,760 --> 00:05:24,679
Speaker 1: Edge Shearing case by looking at how the Ninth Circuit

86
00:05:24,760 --> 00:05:28,599
Speaker 1: on Bank comes out. In the led Zeppelin case, we

87
00:05:28,720 --> 00:05:31,680
Speaker 1: have to see what the decision is. But that decision

88
00:05:31,760 --> 00:05:35,240
Speaker 1: could be very influential way outside of the Ninth Circuit,

89
00:05:35,279 --> 00:05:38,400
Speaker 1: outside of California into all the other music centers in

90
00:05:38,440 --> 00:05:41,880
Speaker 1: the United States, whether it's Nashville, New York, Detroit, Motown.

91
00:05:42,160 --> 00:05:43,840
Speaker 1: I think it's going to be a very important decision.

92
00:05:44,240 --> 00:05:47,040
Speaker 1: As you refer to. The music industry was shaken by

93
00:05:47,080 --> 00:05:50,800
Speaker 1: recent copyright decisions, for example, the Blurred Line case and

94
00:05:50,839 --> 00:05:54,599
Speaker 1: the Katie Perry case. What was sort of scary to

95
00:05:54,640 --> 00:05:58,600
Speaker 1: them about those decisions. In each of those decisions, the

96
00:05:58,640 --> 00:06:03,360
Speaker 1: defendants made are guments that they either were unaware of

97
00:06:03,400 --> 00:06:06,640
Speaker 1: the plaintift song, or if they were aware of it,

98
00:06:06,880 --> 00:06:11,280
Speaker 1: they were simply taking common elements that many many different

99
00:06:11,320 --> 00:06:13,920
Speaker 1: songs have used in the past, and that therefore they

100
00:06:13,920 --> 00:06:16,880
Speaker 1: were allowed to do that they weren't infringing copyright, and

101
00:06:17,040 --> 00:06:19,440
Speaker 1: yet they were sued anyway. And in the Blurred Lines case,

102
00:06:19,880 --> 00:06:22,400
Speaker 1: the defendants lost and ended up having to pay a

103
00:06:22,480 --> 00:06:25,240
Speaker 1: large amount of money to the state of Marmot. Kay.

104
00:06:25,640 --> 00:06:29,480
Speaker 1: The music business right now in a great uncertainty as

105
00:06:29,560 --> 00:06:33,200
Speaker 1: to what is exactly copyrighted and what is not copyrighted,

106
00:06:33,839 --> 00:06:38,039
Speaker 1: and artists, producers, record labels need guidance and they're hoping

107
00:06:38,040 --> 00:06:40,359
Speaker 1: to get it from this case. Are they likely to

108
00:06:40,360 --> 00:06:43,400
Speaker 1: get it from this case? Though the courts could rule narrowly,

109
00:06:43,880 --> 00:06:47,000
Speaker 1: the court could grow very narrowly here. They could simply

110
00:06:47,080 --> 00:06:49,720
Speaker 1: stick to the issue of should the court have as

111
00:06:49,760 --> 00:06:53,359
Speaker 1: part of the jury instructions allowed the recordings to be

112
00:06:53,400 --> 00:06:56,040
Speaker 1: played or not? And in particular, if they say that

113
00:06:56,080 --> 00:06:59,000
Speaker 1: the judgement mistake should have allowed the recordings to be played,

114
00:06:59,120 --> 00:07:01,760
Speaker 1: they can send it back down to the trial court

115
00:07:01,800 --> 00:07:04,360
Speaker 1: for a new jury trial and start the process all

116
00:07:04,360 --> 00:07:07,560
Speaker 1: over again without giving us big picture guidance. So we

117
00:07:07,640 --> 00:07:09,960
Speaker 1: just don't know what the Ninth Circuits going to do.

118
00:07:10,040 --> 00:07:11,960
Speaker 1: But I know there's a lot of people in the

119
00:07:12,000 --> 00:07:15,960
Speaker 1: industry who are really hoping to get some certainty out

120
00:07:15,960 --> 00:07:18,520
Speaker 1: of this decision that will guide how they go forward

121
00:07:18,600 --> 00:07:21,280
Speaker 1: in the music business. And a little unusual, but the

122
00:07:21,320 --> 00:07:26,040
Speaker 1: Trump administration weighed in here on led Zeppelin side and

123
00:07:26,240 --> 00:07:31,560
Speaker 1: talked about something called thin or minimal copyright protection. Well,

124
00:07:31,680 --> 00:07:34,720
Speaker 1: the courts I frequently said that with respect to common

125
00:07:34,760 --> 00:07:39,520
Speaker 1: elements in both publishing and music standard tropes, that there

126
00:07:39,520 --> 00:07:43,840
Speaker 1: should be very very weak copyright protection and it should

127
00:07:43,880 --> 00:07:47,800
Speaker 1: be limited to almost the exact copying. Imagine putting a

128
00:07:47,840 --> 00:07:50,160
Speaker 1: book on a Xerox machine, exact copy and that sort,

129
00:07:50,320 --> 00:07:53,160
Speaker 1: and the music business what's called sampling, and that's the

130
00:07:53,200 --> 00:07:56,920
Speaker 1: limit of copyright protection. And the United States governments essentially

131
00:07:56,960 --> 00:07:59,920
Speaker 1: said that in this case, you have some music bill

132
00:08:00,040 --> 00:08:03,320
Speaker 1: thing blocks that are allegedly copyrighted, they really should get

133
00:08:03,440 --> 00:08:06,440
Speaker 1: very weak protection and only protected to the extent that

134
00:08:06,440 --> 00:08:10,760
Speaker 1: there's exact copying. Thanks Terry, that's Terence Ross, a partner

135
00:08:10,760 --> 00:08:15,520
Speaker 1: at katon Uchin. Thanks for listening to the Bloomberg Law Podcast.

136
00:08:15,880 --> 00:08:19,880
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

137
00:08:20,000 --> 00:08:23,920
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

138
00:08:24,360 --> 00:08:28,239
Speaker 1: This is Bloomberg yea