June 16, 2016

Jimmy Page — "in a black three-piece suit with his long white hair tied back" — testified in court yesterday.

In the case about whether the acoustic guitar pattern that begins "Stairway to Heaven" was copied from the Spirit recording "Taurus."
“I know that I had never heard it before,” he said....

Mr. Page... whether he remembered a concert in December 1968 when Led Zeppelin opened for Spirit.

“I didn’t hear Spirit at the Denver show,” Mr. Page said, adding that he believed the headliner was Vanilla Fudge.

Mr. Page admitted that he owned a copy of Spirit’s 1968 debut album, which contains the song “Taurus,” although he said he did not know how he got it. His record collection contains 4,329 vinyl albums and 5,882 CDs, he said.

Earlier in the day, Mark Andes, the bassist in Spirit, testified that “Taurus” had been a regular part of the band’s set in its early days. He said he remembered drinking beer and playing snooker with Mr. Plant after Spirit played a club in Birmingham, England, in 1970. “We had a blast,” Mr. Andes said.
"Stairway to Heaven" has made over $562 million in royalties over the years.

36 comments:

tim maguire said...

There's a YouTube video of a music critic playing the two songs next to each other. They're very similar, I can understand Spirit thinking they'd inspired Stairway to Heaven. But all art is inspired by other art, one way or another. Nothing is truly unique; that used to be understood and accepted.

This is just an attempt to cash in. Some free money in their old age.

Eric said...

Mr. Page... whether he remembered a concert in December 1968 when Led Zeppelin opened for Spirit.

“I didn’t hear Spirit at the Denver show,” Mr. Page said, adding that he believed the headliner was Vanilla Fudge.
=====
Wow.

For the record (har), my wife still has two Spirit albums.

rhhardin said...

It ought to be determined by whether anybody's been sued over youtubes of stairway to heaven. Use his own standard of copyright hassling, whatever it is.

Wilbur said...

I just listened to "Taurus" now.

I would rule for the defendants. The similarity is attenuated, to my uneducated ear.

Gahrie said...

It took 40+ years for these guys to come to the conclusion that Stairway was a rip off?

Maybe if they had filed the case in the 70's........

tim in vermont said...

Here is a group that got ripped off for a hit song.

As for Stairway being a rip off of Spirit, it's close, but it is not the same thing. Lots of people take chord progressions from other people and who knew you could copyright a descending scale base line. I would come down with not guilty.

Red Hot Chili Peppers on the other hand...

rhhardin said...

in a black three-piece suit with his long white hair tied back

There's a name for this construction that alludes to its use in journalism, but I don't offhand know where to look it up again. The point is to get irrelevant details into the story by piggybacking on another sentence, where it's not otherwise a legitimate modification of that sentence.

Brando said...

Is it required in a case of copyright infringement that the infringing party was actually aware of the pre-existing work, or is it simply enough that the infringing party copied the pre-existing work? For example, if I never heard of Snoopy but wrote a cartoon that looked just like Snoopy, am I still infringing on Charles Shulz's estate's copyright?

rhhardin said...

Or I do know where to look it up, _A Comprehensive Grammar of the English Language_ by Greenbaum Leech et al, but it's 2000 pages and I don't know where in it it might be.

rhhardin said...

China has banned streaming suggestively eating bananas on the internet. They're ahead of us in intellectual property law.

Curious George said...

"tim in vermont said...
Here is a group that got ripped off for a hit song.

As for Stairway being a rip off of Spirit, it's close, but it is not the same thing. Lots of people take chord progressions from other people and who knew you could copyright a descending scale base line. I would come down with not guilty.

Red Hot Chili Peppers on the other hand..."


"Does “Dani California” sound too much like “Mary Jane’s Last Dance”? Tom Petty tells Rolling Stone he doesn’t give a shit.
“I seriously doubt that there is any negative intent there. And a lot of rock ‘n’ roll songs sound alike. Ask Chuck Berry. The Strokes took ‘American Girl’ [for their song ‘Last Nite’], and I saw an interview with them where they actually admitted it. That made me laugh out loud. I was like, ‘OK, good for you’ … If someone took my song note for note and stole it maliciously, then maybe [I’d sue]. But I don’t believe in lawsuits much. I think there are enough frivolous law suits in this country without people fighting over pop songs.”

Exactly.

tim maguire said...

Brando said...
Is it required in a case of copyright infringement that the infringing party was actually aware of the pre-existing work, or is it simply enough that the infringing party copied the pre-existing work? For example, if I never heard of Snoopy but wrote a cartoon that looked just like Snoopy, am I still infringing on Charles Shultz's estate's copyright?


In copyright, independent creation is allowed, so it matters if Led Zepplin was familiar with Taurus. But your example is more likely to be litigated under Trademark law, and there, llikelihood of confusion is the standard, so similarity is enough to win.

Curious George said...

https://www.youtube.com/watch?v=kWMdiRq0XKE&spfreload=5

Brando said...

"In copyright, independent creation is allowed, so it matters if Led Zepplin was familiar with Taurus."

Ok--so if you prove you're unaware of the original work, that's an absolute defense to a claim of copyright infringement? If so, I assume the burden of proof is on the allegedly infringing party?

EDH said...

Brando, I think the standard is "substantial similarity" I'd thr plaintiff can prove dendant's access, "striking similarity" if the plaintiff cann't prove access.

That's why Page and Plant in their testimony want to minimize what was their access to Spirit's song.

Lyssa said...

I'll admit that I don't really "get" music, but I've never understood how a person could separate out something that they've sort of heard somewhere from something that they came up with originally in their own head. We're so surrounded by music that permeates our minds but is not consciously memorable.

Bruce Hayden said...

Brando - McGuire has the answer. But be careful, because "copying" is the ultimate fact question, and once you have copying, you have one of the major components of copyright infringement. What they were essentially arguing here was not copying, per se, but rather access to the presumably copied work. If they can show access, then the standard for copyright infringement (absent proof of independent creation) is substantial similarity. But absent access, the standard rises to striking similarity, that cannot be easily explained other than through copying. Here, Page is essentially accused of having access to the work because he had a copy of it in his large collection or records and recordings. His response essentially is that he doesn't remember when he got the record, or when he listened to it. If it is believed that he probably got the record before he created the potentially derivative work, then he can be presumed to have listened to it, that listening may have affected his own composition, and the substantial simularity test used to determine copying, and, therefore, infringement. Otherwise, the striking simularity test should be utilized, with the facts potentially falling somewhere between the two tests.

tim maguire said...

Hi Brando, as EDH's comment hints at, "proof" is a bit of a squishy term here. How does Paige prove it never came on the radio while he was in the car? How does Spirit prove it did?

And the reality of artistic creation is, even if Paige innocently "invented" the progression while dicking around in the studio, that doesn't mean his brain didn't pull it out of the archives from that time he was buying silly string at Spencer's gifts and some hippie on the sidewalk outside was playing Taurus.

Ultimately, the judge has to make a call on what's more likely and how much it matters.

Brando said...

Tim, EDH, Bruce--thanks!

Richard Fagin said...

"Stairway to Heaven" was written and performed by Neil Sedaka in 1958. That "other" song is an impostor that appropriated the title. That's one reason of many why I turned my radio off in 1967.

Bruce Hayden said...

Part of the reason that access is important here is that it feeds into independent creation. A lot of copying is indirect, and not direct, such as reading the one score as you write the new song. A musician may have part of someone else's song rolling around in his brain when he writes his new one. And that can be infringement. Hence, the question of access - that helps determine whether or not he could have had the old song rolling around in his head when he composed the new one. Which is to say that in the substantial/striking simularity tests, the negative hypothesis to copying is independent creation.

Bruce Hayden said...

Tim - proving or disproving a negative, esp this many years later, could be difficult here. On the positive side (trying to prove access) I might look at frquency of play in the markets in which the defendant resided at the time (which could be much of the country if he were touring at the time), and quiz him on his radio habits in a deposition first (I listened to little music on the radio back then, but obviously also was not a musician). You obviously don't want to ask these questions in open court first, because he may have a good reason he opulent have heard it on the radio at the time. Again, why this is, as you suggest, so squishy.

CatherineM said...

Can you hear the laughter?

Paul Snively said...

All I know is I'm glad Huey Lewis and the News got their settlement over the "Ghostbusters" theme. It was a ripoff, and an obvious one. But I also find Huey's later realization that, basically, their "wave" was, in fact, for sale, kind of funny. He basically got to the same place Tom Petty did, just years later.

David said...

"Stairway to Heaven" has made over $562 million in royalties over the years.

There you have it, the real reason for "income inequality." We now have a global mass market. Tap into that market with any product or service and the income generated can be huge. Ditto with just the domestic market. The rise of the internet and the massive expansion of the middle class world wide has provided a way to generate wealth for the innovative, talented or lucky that did not exist before.

William said...

Stairway to Heaven made over a half billion dollars. Is that the most lucrative song of all time? So far as I know it's not like Stardust. It's not in the repertoire of other bands or other singers. That's quite a lot of money. I'm glad lawyers have found enough ambiguity in the chord procession to tap into this lucrative gold mine. I'm sure if lawyers get hold of this income stream the money will not go to drug cartels and Ferrari dealers the way it would if the money remained with record executives and pony tailed musicians. This suit is a good thing for America, and the longer it goes on the better.........Stephen Foster sold the rights to Oh, Susanna for ten dollars. How much money does a songwriter deserve? The mid and later part of the 20th century were the sweet spot for the music industry.

Beach Brutus said...

Can anyone out there that regularly practices IP explain how a claim of infringement based on a 41 year old publication of the infringing work survived summary judgment for statute of limitations?

coupe said...

Beach Brutus said...Can anyone out there that regularly practices IP explain how a claim of infringement based on a 41 year old publication of the infringing work survived summary judgment for statute of limitations?

I believe this case has been working it's way up the system for years. I think all the lawyers have probably raised their kids and paid for private schools during all that time.

Eric the Fruit Bat said...

"Stairway to Heaven" has made over $562 million in royalties over the years.

The great injustice, here, is that there must be hundreds of other songs out there ripped-off from Spirit recordings that haven't made so much as a dime.

Anthony said...

C'mon, everybody knows that Led Zeppelin just walked out into the woods one day and came back out a few hours later with the entire song written and no apparent memory of what went on. Cuz, you know, if you play it backwards. . . . .

eddie willers said...

I prefer "Nature's Way" to the whole Zeppelin catalog.

wholelottasplainin' said...

It's a common chord progression, as I've written here before.

Go listen to Johnny Rivers' "Summer Rain". It's got exactly the same progression.

THE SAME SONG also has a few bars openly imitating the beginning of "Sgt. Pepper's".

Should the Beatles have sued him??

Ever listen closely to "Michelle", by the Beatles? Same progression. Should the Beatles have sued Spirit???

Rhythm and Balls said...

Wow.

But my take is that the plaintiff's song is so light (from the clip I heard) that it's possible it was in the background and filtered into Page's subconscious. It was just too airy and inconspicuous for it to have been a song that anyone would have actually remembered listening to. It was probably playing in the background one day as Mr Page was frying eggs, trying to combat a hangover.

Joan said...

Why anyone would expect Jimmy Paige to remember anything from those days is the real mystery. Plant, now, he probably stands a better chance, having killed off fewer brain cells than his bandmate.

I'm surprised they haven't just settled this with a nice fat check. Maybe they are in some way enjoying the publicity.

mikee said...

I, for one, hate when the radio stations play Freebird in its entirety and then cut off the last warbles at the very end. Or worse, talk over the final bars. Bastards.

Zach said...

The thing about Taurus that's worth stealing is the idea of leading into a rock song with a bare bones acoustic melody that picks out each note rather than strumming. It's a great effect, but I don't see how you could copyright something that general.

Mixing a descending line with an ascending line makes Stairway to Heaven sound much brighter, although the phrasing is similar.

If I were on a jury, I'd vote for the defendant. The songs sound similar, but after all it's only the lead in, and Stairway to Heaven is a famously long song. I'm satisfied that the song is an original creation and not just a repackaging of the Spirit song.