have won the appeal in the case over their signature song, “Stairway to Heaven.” On Monday, the Ninth Circuit Court of Appeals upheld a 2016 decision that “Stairway” did not infringe on Spirit’s 1968 instrumental track, “Taurus,” and in doing so upended a long-standing copyright precedent.
The ruling caps off a winding and complex legal case that began in 2014 when Michael Skidmore — a trustee representing the estate of Spirit guitarist Randy Wolfe — accused Jimmy Page and Robert Plant of stealing the opening guitar riff of “Stairway to Heaven” from “Taurus.” Zeppelin won the case in 2016, but in September 2018 a three-judge panel on the Ninth Circuit ruled that the original trial involved “erroneous jury instructions” and ordered a new trial.
Speaking with Rolling Stone, Skidmore’s lawyer, Francis Malofiy, slammed the decision, saying, “What you have here is a big win for the multi-billion dollar industry against the creatives. I love Led Zeppelin, as a man, and I can separate my appreciation for them as four band members playing amazing music, but they’re the greatest art thieves of all time and they got away with it again today. They won on a technicality. But they absolutely stole that piece of work.”
Malofiy added that he doesn’t necessarily plan to drop the case and laid out two possible paths forward: Appeal to a panel that comprises all the judges on the Ninth Circuit, as opposed to just a cross-section, or potentially appeal to the Supreme Court. He said he is still considering which of the two options to pursue.
One aspect of the initial case the appeals court upheld was the district court’s decision to deny Skidmore’s request to play the sound recordings of “Taurus” and “Stairway to Heaven” for the jury. That is because both songs are protected under the 1909 Copyright Act, which applies only to sheet music, while the 1976 Copyright Act includes sound recordings.
Skidmore’s desire to play the two recordings also tied into his attempts to prove Zeppelin had access to “Taurus.” Proving access has long been key to proving two works are “substantially similar,” but in its new ruling, the Ninth Circuit overturned a long-standing precedent in this realm known as the “inverse ratio rule.” (The inverse ratio rule holds that if one party can prove a high degree of access to a certain work, the less substantial the similarities need to be in order to prove infringement.)
In his appeal, Skidmore objected to the lower court judge’s decision not to instruct the jury on the inverse ratio rule. He believed this would’ve helped his case because not only did Led Zeppelin and Spirit tour together in the late Sixties, but also because Page admitted during the trial that he had a copy of the Spirit album with “Taurus” in his collection (though he denied “any knowledge” of the song). If Skidmore could prove this much access, the similarities between the two songs wouldn’t need to be overwhelming in order to prove infringement (this would’ve been doubly helpful because the copyright complaint centered around just a few measures of music at the starts of “Stairway” and “Taurus”).
While the Ninth Circuit has used the inverse ratio rule in the past, other appeals courts have rejected it, and in his decision, Judge R. Gary Klausner said that because the inverse ratio rule “defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.” Klausner added that the application of the rule has been inconsistent in the Ninth Circuit, and notably mentioned the “Blurred Lines” case, where it was initially touted as “binding precedent,” before all mention of it was later removed from an amended opinion.
While Klausner showed the various flaws of the inverse ratio rule over the years, he noted its particular murkiness in the digital age where access is ostensibly infinite. “To the extent ‘access’ still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity,” Klausner wrote. “But noting in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.”