Led Zeppelin Wins ’Stairway to Heaven’ Copyright Case

common musical elements. What did the courts say about that? Well, the Court agreed with the jury's finding that these five individual elements were not substantially similar. Court went on to say that they were all relatively common building blocks in musical composition, and that therefore they really weren't protectable under the Copyright Act in the first place. Does that mean

a few notes sequence can or cannot be copyrighted? The Court has specifically said and repeated in this case um that they've never used the word never extended copyright protection to just a few notes. The argument made on appeal here by the trustee for the plaintiff was that it wasn't merely a few notes that were copied. It was a purportedly unique combination of these five musical elements, which each in and of themselves might have been unprotectable, but

when combined in a unique way, became copyrightable. And that that is why Stairway to Heaven infringed the copyright of the song Torus. So, now the Ninth Circuit had what's called the inverse ratio rule for copy cases for more than forty years. Did it reverse that in this case and explain what that is? That's probably what the scholars will say is the most boardant takeaway from this case that the Ninth circuits infamous inverse ratio rule has been

aggregated completely overruled. Keep in mind that this decision was by the entire court of the Ninth Circuit of Big Court to start with, but all the active judges eleven judges participated in this and so it's a very important

decision just on that basis alone. But what the inverse ratio rule said was if in these cases where you cannot prove direct copying where you know the person took something to xerox machine and copied it or you watch them hand copied it, where you have to show it sort of show circumstantial copying, and you have to prove that the defendant had both access to the work and substantial similarity. If you have a really lot of access, which was the case here, therefore you don't have to

show as much similarity. That's the inverse ratio. Lots of access, less similarity, very little access, lots of similarity required. The vast majority of courts in the nation have rejected that rule, and the Ninth Circuit now joins them and says, you know, we've gotten it wrong for all these years, and it's twenty plus years now. We've had it wrong all those years, and we are now abrogating the inverse ratio rule for

copyright cases. I thought it was interesting that the Appeals Court said that access has been deluded in the digital age because so many works are available on Netflix, on YouTube, on Spotify. It made a very interesting point, using the

television show The Office as an example. It said essentially that and where you turn, you will find an episode of the Office, and therefore these highly accessible copyright it works like The Office take advantage of this inverse ratio rule unfairly as opposed to other works that aren't as accessible.

In our digital world, and the copyright law was never intended to favor one class of works over another class of works, or one type of copyright over another copyright, and therefore the inverse ratio rule public policy grounds was wrong. And of course this is what all the other courts had been saying for twenty years now, and the Ninth

Circuit just got around to figuring it out. Well, better late than never, as they say, right, we've talked before about copyright lawsuits at the music industry recently has called frivolous, like the Blurredlines trial in Will this decision clear that up? Will it make it better for the music industry? Well, it remains to be seen. The descent here two judges did dissent from the decisions that was nine to two.

The descent specifically said that this ruling will, as it said, weaken copyright protection for musicians by robbing them of the ability to protect a unique way of combining musical elements. And this goes back to the finding by the majority that the way the combination of the five different musical building blocks was made was not really something that could be sued upon. Here. I think the descent, however, overstates the case, the majority did not say, under no circumstances

could some combination of common musical elements be copyrightable. They did not say that. The descent seems to assume that they did. What they said was in this instance, we did not see at the trial record anything that indicated that the plaintiff had demonstrated that these five desperit common musical elements were combined in such a way that was then copied by led Zeppelin. And so I think that's the distinction, and therefore I think um to a certain extent,

the descent is crying wolf here Terry. A court in New York has put off a trial involving Ed Sharon waiting for this decision. What are they waiting for? And does this answer it? Well, I don't know, um, if it will or it will not. They were not waiting on the decision on the inverse ratio rule, because the

Second Circuit had already rejected that. Clearly, they were looking at the concept of whether or not a plane of should be entitled to get a jury instruction telling the jury that they should consider whether or not there's a certain selection of musical elements combined in such a way as to make them unique and therefore entitled to copyright protection.

I'm not sure that there's the sort of clarity here in this decision that's going to help the New York Court, quite frankly, because I believe that the ruling by the Ninth Circuit is very fact specific to the led Zeppelin case. Terry, always a pleasure to speak to you. Thanks so much. That's Terence Ross. He's a partner at Caton muchen Rosamand thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg