Max's Musings

Stairway to Heaven

Stairway to Copyright Law

Led Zepelin's Stairway to Heaven is arguably one of the greatest rock songs of all time. It appears as #31 on Rolling Stone's list of the 500 greatest rock songs, and a poll of VH1 viewers voted it third all-time. Millions of fans will immediately recognize the iconic opening chords.
https://www.youtube.com/watch?v=QkF3oxziUI4

It's a great song, to be sure. But US copyright law is what places it on my personal soundtrack.

That iconic opening riff sounds pretty much the same as the opening in another, earlier work, Taurus, by the band Spirit. Listen to both songs, and you'll see what I mean. Jump to the 45 second mark in the link below.
https://www.youtube.com/watch?v=gFHLO_2_THgh

You have to admit, they sound a lot alike. The estate of one of Taurus band members sued Led Zepellin and sought damages for copyright infringment. Litigants estimated that Stairway had earned over $550 million dollars at the time of the lawsuit, so damages could have been substantial had the case succeeded.

Led Zeppelin won the lawsuit, meaning that the trial court did not find evidence of infringement. The trial court also refused to permit the jury to hear recordings of the songs. They based this ruling, in part, on the legal theory that the copyright laws in question applied only to the written documents filed with the copyright office and not any subsequent and impromptu additions made during recording sessions. Since the specific documents on file did not support infringement, the court ruled in favor of Led Zeppelin.

(I note in passing that the current copyright law only requires that the work be fixed in permanent form, so a recording is sufficient to establish copyright even in the absence of the copyright symbol. However, in order to seek damages, the copyright does have to be registered, so the written documentation in the US Copyright office still matters.)

In any case, the Spirit ligigants appealed, and a panel of the ninth circuit overturned the trial court's decision based on a precedent called the "inverse ratio rule." Basically, this rule said that if the party who allegedly violated the copyright likely had access to the earlier work in any form, that changes the balance of proof in the case, i.e., the greater the access, the greater the case for infringement. The panel remanded the case back to the trial court for re-hearing based on ninth circuit precedents invoking the "inverse ratio rule."

However, that was just a panel of the ninth circuit, and attorneys for Led Zeppelin filed an appeal requesting that the entire circuit hear the case en banc. The entire circuit did so, and they vacated the inverse ratio rule and all judgements made thereto, finding that the rule was vague and without merit. Thus, the ninth circuit re-instated the initial finding that there was no infringement.

The Spirit attorneys filed an appeal with the US Supreme Court, which denied cert, i.e., refused to hear the case. That means that the ruling in ninth circuit stands, and no further appeals are possible. Thus, the inverse ratio rule is basically toast.

This is all about rock music, so why is that important to me, as a fiction author?

Well, the issue at bar was, in part, whether or not a certain set of chord progressions could be subject to copyright. For example, the idea of a mystery can't be copyrighted, although an individual execution of that idea, such as The Maltese Falcon, can be. So, the question at bar was, again at least in part, whether chord progressions are to music what basic plot ideas--like "mystery" or "romance"--are to fiction.

I'm not a lawyer, so straining at gnats isn't my speciality. But...consider this collection of passages from composers dating as far back as J.S. Bach:
https://www.youtube.com/watch?v=xlgqkno2hB8
You will clearly hear exactly the same chord progressions as in both the Spirit song and in Stairway. That's pretty convincing to someone like me that the courts reached the right decision in this case.

A few years back, about the time universities started giving online examinations, a company filed a copyright for the idea of online exams. The company then sent out cease-and-desist notices to universities all over the US demaning royalty payments for violating their copyright. As far as a I know, no one bit and the company didn't collect a dime. If it had gone to court, the company's broad reading of the thier copyright would doubtless have been found invalid.

Maybe the Courts can actually get it right, at least sometimes. In any case, their ruling in the Stairway case secures the song's place in legal history as well as rock history.


Max Griffin
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