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.

Trial Underway in Stairway to Heaven Lawsuit

Trial is underway in a U.S. District Court for the Central District of California, where the legendary British rock band Led Zeppelin has been sued for money damages and writer credits for the band’s iconic megahit “Stairway to Heaven.” In 2014, the estate of guitarist Randy California, a founding member of the band Spirit, filed a lawsuit claiming that Stairway’s iconic introduction was lifted directly from Spirit’s song “Taurus,” which Led Zeppelin allegedly heard while opening for Spirit on several concerts in the late 1960s.

Unable to dismiss the case on summary judgment, the band found itself in court this week, with guitarist Jimmy Page taking the witness stand for an hours-long grilling by plaintiff’s counsel. Page’s testimony centered on plaintiff’s counsel’s attempts to demonstrate Led Zeppelin’s familiarity with Spirit’s music, as well as any personal contact between the bands. Surprisingly, Page testified that he never heard Taurus until something appeared on the internet just a few years ago drawing attention to the comparison between Taurus and Stairway. Page further testified that, concerning a 1969 concert in Denver on which both Zeppelin and Spirit performed, he didn’t even know he was opening for Spirit; Page believed that Zeppelin was opening for Vanilla Fudge, another rock band. Additionally, he recalled that the members of Led Zeppelin left the venue immediately after their opening set in order to get to another performance the next day.

As trial continues to unfold, the legal battle surrounding one of the most iconic songs of all time appears to get more and more contentious. We can likely look forward to more colorful witness testimony, including from lead singer Robert Plant, and musicians everywhere should be keeping a close watch to see if the plaintiffs are ultimately successful in rewriting rock and roll history by having Randy California included as a writer on Stairway to Heaven.

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

“The Most Interesting Man in the World” Gets His Counterclaim Tossed

Last fall, Jonathan Goldsmith, known as the “most interesting man in the world” of Dos Equis advertisement fame, was sued for breach of contract by his former talent agency after allegedly withholding commissions owed to the agency. Goldsmith, who began portraying the “most interesting man in the world” in 2006, earns approximately $1 million per year and is required by contract to pay a 10% commission to his talent agency. The ongoing lawsuit in Los Angeles is over Goldsmith’s alleged failure to pay those commissions.

What began as a straightforward breach of contract case took an interesting turn when Goldsmith filed a counterclaim in February, alleging that the owner of the talent agency was not who he said he was, but rather a failed actor who assumed a fake name in an effort to launch a new career as a personal manager. The counterclaim further alleges that after Goldsmith executed a contract extension with Dos Equis, which required strict confidentiality of its terms, Plaintiffs disclosed its payment terms, damaging Goldsmith’s relationship with Dos Equis and jeopardizing his future as the beer’s spokesman.

This month, Los Angeles Superior Court Judge Barbara Meiers granted Plaintiffs’ motion to dismiss Goldsmith’s counterclaim, noting that Goldsmith was unable to establish any probability of success on his claims and that there was no basis to support the countersuit. Goldsmith plans to appeal the dismissal of his counterclaim, and this litigation is shaping up to be costly for both sides. The case serves as an interesting reminder that staying out of court and avoiding costly litigation requires not just ironing out specific contract terms up front, but also adhering to them. A textbook example of when litigation simply isn’t worthwhile, this case indicates that it would likely have been less costly for Goldsmith to pay the 10% commission than to wage war in the courtroom by bringing frivolous counterclaims.

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

Stairway to Heaven Lawsuit Trial Date Set

If you work in or around the music industry, you’re probably well aware of the fact that Led Zeppelin, one of the most popular bands of all time, has been embroiled in litigation over the writer credits for the band’s iconic megahit “Stairway to Heaven.” In 2014, the estate of guitarist Randy California, a founding member of the band Spirit, as well as another band member, sued Led Zeppelin in the U.S. District Court for the Eastern District of Pennsylvania for copyright infringement over the musical similarities between “Stairway to Heaven” and Spirit’s “Taurus.” The lawsuit states that Stairway’s iconic introduction was lifted directly from Taurus, which Led Zeppelin heard while opening for Spirit on several concerts in 1968 and 1969, and seeks monetary damages as well as crediting Randy California as a writer on Stairway to Heaven.

While Led Zeppelin was unsuccessful in dismissing the lawsuit, the band succeeded in having the case moved from Pennsylvania to Los Angeles, where a federal district judge has slated trial to begin on May 10th, 47 years to the day after Zeppelin performed a concert in Vancouver for a crowd of 4,000. Notably, the band’s defenses in this case don’t deny that Taurus was appropriated, or claim that the songs are dissimilar. Instead, Led Zeppelin claims that the Plaintiffs have no standing to bring this lawsuit in the first place, for three reasons. First, the band asserts that Randy California wrote Taurus as a work for hire, meaning that he created the music pursuant to his contract with Hollenbeck Music and solely on Hollenbeck’s behalf, and therefore never owned the copyright himself. Second, the Defendants argue that California waived any claim to the work in a 1991 interview when he was asked about the similarities between Taurus and Stairway, ultimately responding that “if they wanted to use [Taurus], that’s fine,” and “I’ll let them have . . . Taurus for their song without a lawsuit.” Finally, the members of Led Zeppelin claim that they have been prejudiced by the fact that Plaintiffs waited over 40 years to bring this claim, during which time Stairway to Heaven became one of the highest-earning songs in history, and increasing the amount of damages sought by the Plaintiffs.

This is a case of landmark proportions. The fact that Led Zeppelin, a British band, was found to be subject to personal jurisdiction, first in Pennsylvania and now in Los Angeles, demonstrates that jurisdictional requirements can be met by non-resident musicians simply by marketing and selling records in a particular place. Recent efforts by the parties to settle the case have been fruitless, and we expect the case to proceed to trial roughly a month from now, as scheduled. Stay tuned as the court finally resolves this copyright infringement matter involving one of the most iconic, widely recognizable songs of all time.

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

Internet Service Provider Held Responsible for Users’ Infringement in Landmark Decision

BMG Rights Management, one of the world’s largest music publishers, has been awarded a $25 million verdict by a federal jury after Cox Communications was found to be liable for the copyright-infringing actions of its users.

Following a week-long trial in the U.S. District Court for the Eastern District of Virginia, it was determined that Cox was on the hook for the actions of its users as a result of its failure to reasonably implement a repeat-infringer policy. While the Digital Millennium Copyright Act offers a number of “safe harbors” that typically protect internet service providers from liability for copyright infringement, Cox was found to fall outside of these safe harbors when it failed to crack down on repeated piracy. For example, after identifying known copyright pirates among Cox users, BMG sought to enlist Cox’s help in sending cease and desist letters to those users and/or terminating their internet service. Cox purported to have a policy of terminating the service of repeat copyright infringers, but in practice retained them as high speed internet customers.

BMG controls the rights to music by popular artists including David Bowie and Bruno Mars, among others. At issue in this particular lawsuit were 1,397 different copyrighted works that were downloaded illegally a total of nearly 2 million times. The jury found Cox liable for willful contributory infringement, awarding $25 million in damages. Moreover, Cox is now facing a separate lawsuit from its insurance company, which is trying to skip out on the tab in the BMG case due to “Cox’s business policy and practice of ignoring and failing to forward infringement notices and refusing to terminate or block infringing customers’ accounts.”

The impact of this landmark decision on future internet service provider liability for copyright infringement seems clear: you can probably expect ISPs to crack down much harder on copyright abuse, probably going as far as to terminate the service of repeat offenders. In the wake of this verdict, the failure to do so could result in significant liability for the service provider, in what appears to be a clear victory for artists and rights holders.

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

Recent Copyright Law Decisions Have the Industry Jammin’

The entertainment industry is no stranger to copyright law, but three recent federal court decisions may just throw things for a loop.

Earlier this summer, the Fourth Circuit clarified the “substantially similar” test, which is used to determine copyright infringement. David Copeland, a singer and songwriter, alleged that Justin Bieber and Usher’s song, Somebody to Love, was a ripoff of his own song. In considering whether the two works were “substantially similar,” the Fourth Circuit applied a two-part analysis: whether the works were “intrinsically” (in other words, subjectively) similar and whether they were “extrinsically” (objectively) similar. Although the extrinsic analysis often involves scholarship and expert analysis, the subjective analysis is based on the general audience’s perception. The Court found that both songs had an identical chorus, or “hook.” Since the hook is typically the most memorable part of any song, the Court concluded that a jury could reasonably find the two songs substantially similar and remanded the case back to the lower court. The case could go to trial as early as next year.

The Ninth Circuit, meanwhile, has weighed in on an eight-year-long battle involving the extent of copyright holders’ claims over copyrighted material. In 2007, Stephanie Lenz sued Universal for directing YouTube to take down a 29-second video clip of her son bobbing to Prince’s Let’s Go Crazy. Universal asserted that the clip infringed Prince’s music copyright. Section 512(c) of the Digital Millennium Copyright Act (DMCA) allows service providers, like YouTube, to avoid copyright infringement liability if they timely remove or disable access targeted content after receiving a takedown notification about the content. Notoriously known as the “dancing baby” case, Lenz’s claim alleged that Universal did not evaluate whether the uploaded video’s use of Prince’s song qualified as “fair use” before targeting it for takedown. The Fair Use Doctrine permits the use of copyrighted material in certain situations, such as parody, news reporting, or incidental use, based on application of a subjective, multi-part test. Although the DMCA does not explicitly require fair use analysis prior to issuance of a take-down notice, the Ninth Circuit held that “fair use is not just excused by the law, it is wholly authorized by the law.” According to the opinion, the DMCA requires copyright holders to consider fair use before sending a takedown notification, or face liability under the statute. This could change completely many large media companies’ anti-infringement campaigns – most of which have an automated element – since the highly subjective fair use analysis can’t be performed by a computer.

Finally, the United States District Court for the Central District of California ruled that the “Happy Birthday” song now belongs to the public. After a class action suit challenged Warner/Chappell Music’s rights to the song, Judge King determined that the original copyright covered the song’s piano arrangement, but not the lyrics, and that the whole work has since fallen into the public domain. While the ruling serves as a fun law school case-study, it also has serious business implications for Warner/Chappell Music. Since acquiring the copyright in 1988, the company has profited significantly through commercial licensing of the song – to the tune of almost $2 million a year. Judge King’s ruling may now provide an avenue for the licensees to retrieve their money back. A Happy Birthday indeed!

With a number of other major copyright cases making their ways through the courts this year, even more changes may be on the horizon, so stay tuned for more industry updates.

Sara Almousa is a law student at the George Mason University School of Law and a law clerk at the firm of Berenzweig Leonard, LLP.