IP ENSight | 7 November 2018

The stairway to heaven goes on and on

by Rachel Sikwane

The Led Zeppelin Stairway to Heaven copyright case has been in the news again. One of the greatest songs of the rock era is now proving to be one of the most hotly contested.

In one of our earlier articles, the issue in this case was whether Led Zeppelin’s 1971 rock classic infringed the copyright in the much less successful 1967 song Spirit, by the band Taurus. The evidence showed that Led Zeppelin had known of the song Spirit, having performed at a concert where Taurus played in 1970. The case revolved around the well-known opening chord sequence that appears in Stairway to Heaven. The jury in the California court concluded that the opening sequence of Stairway to Heaven was not “intrinsically similar” to a particular sequence that appears in Spirit. Led Zeppelin had argued that the chord progression or sequence was a common one, one that has been around for many years.  

This case went on appeal. An appeal court has now found that the trial judge gave the jury wrong advice on various matters. For example, it is claimed that the judge failed to make it clear to the jury that, although copyright law might not protect individual elements such as notes or scales, it can protect combinations or sequences if they are original. The judge should have made it clear that copyright can protect chromatic scales, arpeggios or short sequences of three notes. Moreover, it is claimed that the jurors never actually got to hear the Taurus recording of Spirit. What they heard, instead, were various renditions of the song played by musicians who worked from sheet music. But, it is claimed, the sheet music was not faithful to the original recording of Spirit.

The case highlights a number of important aspects of copyright law. For starters, there is the issue of substance, an issue that crops up in two different contexts. First, substance comes up in the context of whether or not a work actually enjoys copyright. In order to enjoy copyright, a work – be it written, artistic, or musical – must be original. In the context of copyright, originality does not refer to cleverness or uniqueness, but rather to effort or, as it is sometimes called, “sweat of the brow”. Another way of putting this, is that the work must have some substance. 

So, for example, in one case, a court decided that a song title did not have enough substance to enjoy copyright. On the other hand, a few years back, a UK court held that newspaper headlines can enjoy copyright protection because writing headlines often involves skill and effort. A tweet, even the short 140-character version, will often have enough substance to enjoy copyright. It is quite conceivable that a musician or songwriter might want to claim that a chord progression or sequence appearing in their song has enough substance to enjoy copyright.

The second aspect of substance relates to copying, in the sense that there is only an infringement if a “substantial part” of the work was copied. The substance here does not refer to quantity but quality. So, copying a single but important sentence of a newspaper article might be deemed to be copying a substantial part of the article. Copying a short but important chord progression or sequence from a song might be deemed to be copying a substantial part of the song. 

Another important aspect of copyright is the fact that there can only be an infringement if there was actual copying. Copyright is not an absolute right and it cannot be used to stop coincidental similarity. Led Zeppelin might argue that the chord sequence that appears in both Spirit and Stairway to Heaven is so common that it is no more than coincidence. 
The case highlights how technical copyright cases can be, especially in the field of music. How daunting must it be for a juror to have to come to grips with arpeggios and chromatic scales, to consider highly technical and conflicting evidence from music experts, and finally make a decision that might have huge financial implications? 

The case also highlights the fact that copyright lasts for a very long time. The original piece of music goes back to 1967 (more than 50 years ago), and the copying is supposed to have occurred around 1971. But copyright terms are very long indeed. In South Africa, the time period for copyright is 50 years, and in some cases that period runs from the date of death of the creator. In many other countries, such as the USA, the copyright period is even longer.

In addition, the case highlights the universal nature of copyright and the fact that a work created in one country will usually enjoy copyright throughout the world because of an international treaty known as the Berne Convention. Even more remarkably, in most cases this protection happens without any need for registration.

Copyright is a complex and highly important area of intellectual property law. For advice on copyright, contact: 

 

Rachel Sikwane

IP | director
rsikwane@ENSafrica.com
cell: +27 83 529 3639

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