Led Zeppelin’s Victory on the Stairway to Heaven

Led Zeppelin emerged victorious in their recent copyright infringement lawsuit against the estate of founding Spirit guitarist, Randy Wolfe, proving once and for all that their smash hit, Stairway To Heaven, is a unique composition and arguably one of the most successful Rock and Roll songs of all time. But in addition to asserting Stairway’s dominance, this landmark decision could possibly change the music industry’s copyright infringement battle ground in the coming years.

Today, popular artists and their hit songs are often facing critical scrutiny. This new trend has led to an abundance of infringement accusations in the last decade. While some cases, such as the Sam Smith’s “Stay With Me” dispute, have been legitimate, other lawsuits, such as the Taylor Swift’s “Shake It Off” debacle, are viewed by many as completely unfounded. Especially after last year’s controversial “Blurred Lines” decision, which required the hit’s songwriters to pay over 5.3 million dollars in damages for replicating the “feel” of Marvin Gaye’s “Got To Give It Up,” many artists have been afraid that creative inspiration will inevitably turn into an expensive and time-consuming copyright lawsuit which will, in turn, stifle artistic creativity.

Thankfully, because of Led Zeppelin’s recent victory, common musical motifs, such as a descending chromatic scale, are now officially not copyrightable, restoring a level of creative freedom that could have been relinquished after 2015’s “Blurred Lines” verdict. Additionally, it is predicted that this legal triumph could diminish future gratuitous copyright allegations now that songwriters can see that these cases are difficult to win.

This case reminds artists that music is rooted in inspiration. For example, in 2009, musical comedy group, The Axis Of Awesome, compiled together 40 pop songs into one mashup in order to prove that musicians have been rehashing the “I-V-vi-IV” chord progression for decades. Although these artists all were inspired by their influences and incorporated the same musical motif, very few of the compiled songs actually sound similar when listened to side by side. In other words, chord progressions are not subject to copyright protection, much like ideas or facts. If one artist could claim a limited monopoly on a musical progression, then the world would be deprived of future artistic creations and music would remain stagnant. Now that Led Zeppelin has defeated their legal opposition, musicians can now officially stand by the fact that chord progressions are useful tools that hopefully can be utilized without fear of infringement. In the end, this trial will go down in history as an important victory for artistic creativity.

Matt Wagner is a law clerk at Berenzweig Leonard, LLP who is currently studying Music Business and Songwriting at Belmont University.

Seth Berenzweig is the managing partner of  Berenzweig Leonard, LLP, works with artists and musicians, and is a member of the  Recording Academy. He can be reached at sberenzweig@BerenzweigLaw.com.

‘Big Bang Theory’ Producers Sued in “Soft Kitty” Copyright Case

Producers of the hit TV show The Big Bang Theory got a legal ‘bazinga’ in a new lawsuit contesting the show’s allegedly unauthorized use of nursery rhyme lyrics written eight decades ago by a New Hampshire school teacher.  The lawsuit, filed in New York federal court by the daughters of Edith Newlin on behalf of their late mother’s estate, asserts that Ms. Newlin held the lyrical copyright, and that the show never bothered to seek permission from her estate to use the now famous Soft Kitty lyrics.  The lawsuit asserts the defendants profited from such use not only from the show on at least eight episodes, but also through lucrative merchandising including T-shirts, toys and other products.

This case demonstrates interesting problems in dealing with copyright protection.  The defendants apparently thought they negotiated a proper license to use the lyrics from Willis Music, a Kentucky-based company which published a compilation of ‘Songs for the Nursery School’ in 1937.  Most lyrical and music copyrights are assigned to publishers, so it may have been understandable for the show’s producers to believe they obtained necessary permission.  However, Ms. Newlin’s estate is asserting that Willis Music only had the limited right to include the lyrics in that book but did not acquire the underlying copyright from Edith Newlin.  If that assertion is correct, these defendants, which include sophisticated companies such as Warner Brothers, Turner Broadcasting and CBS, may have goofed and did not have the right to have Sheldon Leonard and company sing those lyrics.

Viewers should stand by to hear what defenses these companies assert to the lawsuit, and whether they try to pass some of the blame on possible copyright confusion to the publisher, even though Ms. Newlin’s estate asserts that Willis never claimed it held the copyright.  In the meantime, this lawsuit can be considered a wake up call on how important it is to ensure proper use of intellectual property protected by copyright.  Otherwise, you may need Penny singing you a comforting lullaby – and make sure her song has nothing to do with a soft kitty or little ball of fur.

Seth Berenzweig is a managing partner at Berenzweig Leonard, a DC region business law firm that includes a music, media and entertainment practice.

L.A. Jury Delivers $7.4 Million Verdict in “Blurred Lines” Lawsuit

A jury has awarded Marvin Gaye’s children nearly $7.4 million after determining that celebrity singers Robin Thicke and Pharrell Williams plagiarized Gaye’s 1977 hit “Got to Give It Up” to create “Blurred Lines,” the longest-running number one single of 2013.

Thicke and Williams, who each earned more than $7 million apiece on “Blurred Lines,” claim to have written the song independently, but Gaye’s estate argued that a number of distinct elements from “Got to Give It Up” were used in “Blurred Lines” and it was ultimately left up to the jury to determine whether the defendants infringed upon Gaye’s copyright or simply emulated the sound of Gaye’s work. The jury concluded that “Blurred Lines” infringed on Gaye’s copyright, and that decision could have a chilling effect on musicians seeking to emulate the sounds of certain artists, genres, or eras going forward.

Certain aspects of a musical composition are protectable by copyright, such as particular arrangements of notes and harmonies, while others are not, such as style, feel, or the timbre of a certain combination of instruments. In this case, it would be naïve to believe that Gaye’s “Got to Give It Up” did not influence Thicke and Williams in crafting “Blurred Lines,” but copyright protection was not intended to extend to mere influence. While particular expressions of musical ideas can be protected, the ideas themselves, such as pairing an electric piano and a cowbell with a disco beat, cannot.

To the untrained ear, the similarity between the two songs may be striking. A musically trained ear, though, may notice that the two songs are in different keys and utilize different chord progressions. In other words, the success of Gaye’s infringement claim depended largely on the average juror’s inability to see past the similarities between the songs’ unprotectable characteristics (tempo, use of cowbell and Rhodes piano, use of syncopation, similar bass groove) to realize that “Got to Give It Up” and “Blurred Lines” are in fact two different songs whose similarities are mainly limited to characteristics that cannot be protected by copyright.

Had the jury been comprised of the defendants’ peers in the music profession, there is a strong possibility that Thicke and Williams would have prevailed. In light of this huge verdict, however, artists should be increasingly vigilant in their endeavors to emulate the sounds of other artists, genres, and eras in furtherance of their own art. Although the result of this case seems to blur the lines between what is protectable by copyright and what isn't, it nonetheless serves as a reminder that copyright infringement can lead to costly outcomes.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.