Why Rock’s Greatest Riffs May Be Up for Grabs

on Bruce Springsteen Is Born to Run. The question arises because of a trial over the introduction to led Zeppelin's classics Stare to Heaven. The band Spirit claimed that led Zepplin stole one of the most recognizable music passages of the past half century from its instrumental tourists, and when guitarists and rock legend Jimmy Page took the stand, he made the admission that could lead to some of the most famous riffs and classic rock losing copyright protection and

being free for the taking. Joining me to explain this is intellectual property, Attorney Terence ross A partner Captain Nuchin, So Terry take us back to Pages testimony and what

it means. So the plaintifts attorney ask Page on standing under oath whether certain passages from the song Stairway to Heaven, particularly the finger pinking introduction and then the long classic guitar solo towards the end, whether or not they were covered or showed anywhere in the copyright registration that had been filed with Nine States Copyright Office back in the

early seventies. And after looking through what's called the deposit copy they had given to the Copyright Office, Jimmy Page admitted that the introduction and the later guitar solo were not there. They were not within the copyright registration and therefore, arguably we're not copyrighted under the then nineteen o nine Copyright Act. So why wouldn't the judge use a comparison between the recording of Stairway to Heaven and the recording

of Tauruss. This was the legal conundrum that the judge faced. The song Taurus was released in ninety eight. Stairway to Heaven was released in ninete in the United States. Hard as it is to believe nowadays, there was no copyright protection in sound recordings prior to February of nineteen seventy two. So the actual sound recordings the albums were not copyrightable.

What was copyright it was the sheet music. And therefore the judge said, well, you're not allowed to play the actual albums to the jury because that's not what's that issue here and will only confuse the jury. The only thing that's copyrighted is the sheet music, and you get to show that to the jury. And that led to this whole problem that Jimmy Page had on cross examination in which he had to admit that the sheet music for Stairway to Heaven does not include the intro or

the long guitar solo. The judge decided that for pre unpublished songs, the deposited sheet music, which you talked about, defines the scope of the copyright. Can one judge make a determination like that that can affect countless songs, Well, he had to make the determination in the context of that specific trial. That law is very limited to California.

It is now on appeal to the Federal Appellate Court for California, what is known as the Ninth Circuit Court of Appeals, And just this last month, the Ninth Circuit agreed with the parties that the entire panoply of Ninth Circuit judges, all eleven judges, should sit on bonk and decide this very important issue. But even then, June, that decision would only govern the Western Party, United States, you know, the Pacific coast of Hawaiian Alaska. Ultimately, the Supreme Court

will have to decide the answer. If this judge's opinion is upheld. Does that mean that instrumental solos from some classic rock songs may not be protected and could be used for say, ring tones or commercials? Are we going to hear Clarence clement sax solo on boorn to run as a ring tone? I think there's a very real risk of that. Any recording prior to Sevy work fift is certainly at risk, and in addition, anything before January one might also be at risk, depending on which legal

theories adopted by the Ninth Circuit. It is this irony that during the golden period of rock and roll, the fifties, the sixties, and the very early seventies, that we did

not provide copyright protection in this country for recordings. We limited copyright protection to sheet music, and unfortunately, many rock musicians perhaps with bad counsel from lawyers did not properly take the right steps to deposit the right type of sheet music with the copyright officers to get full copyright protection.

Anybody who's played in high school orchestra will have in their mind sheep music that is very lengthy, very detailed, sets out tempo, has multiple types of instruments being shown. That's not what the rock musicians of the sixties and seventies send to do. They tended to submit a piece

of sheet music that was typically for piano. It was only the melody did not include even tempo, and let alone beat or harmony or multiple instruments, and therefore that bare bones submission under this judge's ruling would control the extent of copyright here in the twenty one century. Terry, let's talk a little bit about the defense that led Zeppelin is putting on now, which is odd to some. Well,

it's very odd. There was a U. S. Army officer in the height of the Vietnam War who actually said to reporters, we had to destroy the village in order to save it. And that's exactly the defense that has been adopted here by led Zeppelin's attorneys. They are essentially saying that the Taurus song by Spirit has no copyright with respect to the particular guitar elements at issue because their deposit copy at the Copyright Office their sheet music

did not include that. That opens up an attack on all of led Zeppelin's copyrights because, as Jimmy Page admitted at the trial, the sheet music they deposited with the copyright office often did not encompass everything that was on the recording, and so this defense, in order to avoid copyright infringement is in effect tearing down the copyrights that led Zeppelin its cell phones. It's a very curious approach. What do you feel the reasonable or the correct decision

should be here at the Ninth Circuit. So the challenge that the Ninth Circuit faces is to balance adequate protection against over inclusive protection. And they are really facing a hard call on whether or not to allow juries to listen to sound recordings because the sound recordings are not themselves copyright, it's only the sheet music. And in this case, what happened is a pianist came in and played the sheet music and it founded nothing like the actual sound recordings.

So at least with respect of the genre of classic rock. The Ninth Circuit faces a very difficult challenge that may end up in allowing the free taking of many classic rock riffs. It's gonna be interesting to see how the court comes out. It's going to be fascinating. Thank you so much for that explanation to a really complicated story. That's Terence Ross is an intellectual property attorney and a partner at Caton u Chin. Thanks for listening to the

Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg