Not long Led Zeppelin and their fans celebrated the victory. The Court of Appeal for the Ninth Circuit partially overturned the decision of the California Central District Court, which made it clear that the famous song “Stairway to the Sky” is not substantially similar - that is, plagiarism - with another, no less famous, song “Taurus”. The court of the ninth district came to the conclusion that the court of the central district gave the jury incorrect and prejudicial instructions.
It all started with the fact that Led Zeppelin was accused of plagiarism. And it would be fine if the song was new. No, because they turned the “gaze of critics” on the classics. Although the lawsuit was filed a sufficient number of years after the release and publication of both songs, the court accepted the lawsuit for consideration. And despite the defeat in the district court, the trustee of the foundation - the applicant in Russian - filed an appeal in March 2017. On appeal, the applicant drew attention to the jury’s instructions to the judge.
According to the applicant, the judge, giving instructions to the jury, “lost sight of” a tiny but very important detail: he did not pay attention to the jury that the selection and composition of musical elements that are not individually protectable (for example, descending chromatic foundation or arpeggiated chords over it), as a whole, may be subject to US intellectual property law protection.
The court of the ninth district drew attention to the use by the California court of an external test in determining the significant similarity between the two works, pointing out the complexity of its application. The Court of Appeal partially reversed the decision of the lower court for two main reasons: instructions to the jury regarding “substantial similarity” and “originality”.
The lower court heard the opinion of an expert who stated that the combination of five elements, some of which are in the public domain, became the “basis” for the substantial similarity between the two songs. According to the court of the ninth district, the lower court also made a mistake when he pointed out to the jury that “commonly used musical elements, such as descending chromatic scales, arpeggios, or short sequences of three notes,” are not protected by copyright. These mistakes caused damage to the plaintiff (not material, although which side to look at), and can only be corrected upon re-examination of the case.
Although some professionals are surprised by the position of the court of the ninth district. For example, as one lawyer believes, a descending chromatic base with arpeggiated chords over it exists for several centuries. This reef is not original. Italian composer Giovanni Battista used the same chromatic base and arpeggiated melody in his work “Sonata di Chittarra, e Violino, con il suo Basso Continuo”. And this is 1600 year. (For impatient with 35 seconds).
As for the error in the jury instructions regarding originality. First, in the opinion of the Ninth Circuit Court, the jury instructions included the aforementioned wording that “commonly used musical elements, such as descending chromatic scales, arpeggios, or short sequences of three notes are not protected by copyright.” This mistake blurred the expert’s opinion that Led Zeppelin copied the chromatic scale used in the original manner.
Secondly, in another indication to the jury, there is no part of the originality test and the misleading wording is included. The court did not include in its instructions to the jury the instructions required by the plaintiff, which would confirm the fact that the original part of the work should not be new until it is copied. Instead of including this instruction in the instructions to the jury, the court included wording regarding elements of previous works or public domain not protected by intellectual property law.
The court of the ninth district concluded that “while this statement is not literally wrong, it creates a false impression that elements of the public domain, such as the main musical elements, are not subject to copyright even if they are arranged or refined , the original way. "