Is the Supreme Court ready to make music history? One decorator gives nine justices of the high court such a chance, while he is hardly subtle. Here are the opening notes of a new certification petition: “It may be appropriate that the future of music copyright be decided by a case concerning the most iconic song from the ‘roll’ of ” roll, ” Stairway to Heaven. ‘”
The petition comes from Michael Skidmore, curator of the Randy Craig Wolfe Trust – which means he represents an interest once belonged to Randy “California” Wolfe, singer-songwriter for the rock band Spirit.
Wolfe wrote a song “Taurus”, which many observers see as extremely similar in structure to the opening of Led Zeppelin’s “Stairway to Heaven.” But copyright is not so elementary. Led Zeppelin won trial in 2016, and the 9th Circuit Court of Appeals ruled in March that no retrial was necessary. That got Skidmore up the right stairs in search of nirvana.
Does he have a shot? A slim fit.
Skidmore believes he lost on trial because the jury did not value the real ‘Taurus’. This is because the judge of justice ruled that only something deposited with the U.S. Copyright Office had the benefit of protection under the Copyright Act of 1909. The petitioner thinks this is wrong, and that the scope of copyright is not defined by deposited sheet music. In other words, the recording may be good evidence of what was protected, and the jury should have heard the original recording “Taurus”. (It wasn’t until the mid-1970s that Congress changed the law and dropped audio recordings under copyright. That’s one of the big reasons this is the kind of legal controversy that has arisen especially for older songs including Marvin Gaye’s “Got to Give” It Up. “)
But that’s not the sum of it.
Skidmore also believes he lost on trial because the jury was not properly instructed on originality. Notes of music can not be protected, and frequently used combination of notes belong to the public domain. However, if there is anything unique about the selection and arrangement of these notes, that copyright may be protected. The jury was not told this by the judge before they began to discuss. The Certificate of Excellence paints the opinion of the 9th Circuit and ‘banc as a’ disaster for the creators whose talent is often practiced ‘and one who’ baselessly redefines'[s] originality as a high bar for gaining copyright protection. “
On the other hand, what actually governed the 9th Circuit was that Skidmore never presented the selection and arrangement theory at trial, and so any objection to jury instructions was forgotten. Furthermore, the 9th Circuit did not really agree with the theory of selection and arrangement, which was first articulated by the Supreme Court in a case concerning telephone directories. Instead, the 9th Circuit said it was up to Skidmore to provide more explanation. As the opinion stated, “Presenting a ‘combination of unprotable elements’ without explaining how these elements are specifically selected and arranged, amounts to nothing more than attempting to copyright copyrighted elements.”
Skidmore’s petition was handled by a lawyer at Francis Alexander LLC, the same company that represented the plaintiff in court. A lawyer with more experience in Supreme Court cases may have chosen to emphasize circuit splits. This goes the other way, talking about how the opinion “Stairway to Heaven” of the 9th Circuit has actually been influenced, on the other side of the country quoted in Ed Sheeran’s continuing copyright on all elements of Marvin Gaye “Let’s Get It” for “Thinking Out Loud.” Skidmore’s lawyer writes, “Cases under the 1909 Act are ordinary, and will remain so for the foreseeable future, and need this Court to possess’. address the Ninth Circuit before the damage becomes irreversible. “
The Supreme Court’s appeal bid distinguishes hot areas of appeals such as administrative law and statutory interpretation in favor of a full-blown warning about how courts – including the Hollywood Circuit – abandon long-standing copyright principles. The petition also presents its first question by mentioning each year between 1909 and 2015.
Stylistic quirks aside, there’s a reason why the 9th Circuit took two turns on this issue, and there’s a reason why the U.S. Department of Justice took a side in the fight. A thorny legal issue certainly attracts. The petition could draw amicus letters from outside groups (as they did at lower levels) – musicians, intellectual property scientists and perhaps even those interested in economic or racial justice. This is largely due to the warnings here that if the scope of copyright is defined by what has been shared, “Most songs composed for 1976 will lose protection,” and, “This will have the greatest impact on historically disenfranchised communities. (black blues artists, for example, which led Led Zeppelin to ‘borrow’ heavily and sometimes had to arrange) where the composition of music was not done on paper. ‘
Read the full petition at THR.com.
