Concert guitar on stage

On 23 June 2016, a US federal jury concluded that Led Zeppelin’s Jimmy Page and Robert Plant did not copy the opening guitar riff in “Stairway to Heaven” from the song “Taurus,” an earlier tune by US rock band Spirit. The latter song, a 2-minute 27-second instrumental, was recorded nearly four years before “Stairway,” and was released on Spirit’s self-titled debut album in 1968.

The conclusion of the “Stairway” case comes a little more than a year after a federal jury in Los Angeles, California, awarded millions to R&B-soul singer Marvin Gaye’s family. The jury decided that recording stars Robin Thicke and Pharrell Williams had plagiarized Gaye’s “Got to Give It Up” in creating their hit single “Blurred Lines.”

Facts of the Case

The “Stairway” lawsuit had been brought by the estate of Randy Wolfe (aka “Randy California”), composer of “Taurus” and one of Spirit’s founding members. It alleged that the arpeggiated guitar part in the introduction of “Stairway” was substantially similar to the signature guitar element in “Taurus” and that Led Zeppelin became familiar with the song when they opened for Spirit in various US concert dates in 1968. Guitarist Page, who co-wrote “Stairway” with singer Plant and composed the guitar riff in question, testified in court that he did not recall hearing “Taurus” until recently, after his son-in-law told him that comparisons were being made between the two songs.

After a brief debate, the jury found that, while Page and Plant may have indeed heard the song, there was no substantial similarity in the extrinsic elements of “Taurus” and “Stairway.” This was lucky for Page and Plant because otherwise they would have been liable for a whole lotta damages. Estimates suggest that “Stairway” has generated some $500 million in revenue since its release. When the jurors heard “Taurus,” however, it was only from the sheet music of Spirit’s composition as played by musical experts hired by each side. Until 1978, songwriters could submit only sheet music to copyright a song in the United States. Thus, only the composition—and not the sound recording—was at issue in the case.

Copyright and Chord Progressions

The interesting question of law about whether and under what circumstances a four-chord progression itself could be copyrightable and whether similarities in instrumentation and orchestration could play a role in the answer was not addressed in this case.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

Mixer

In 2013, several artists and music production companies filed a constitutional complaint with the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) against two Federal Court of Justice (Bundesgerichtshof, BGH) rulings (I ZR 112/06I ZR 182/11) that held that the sampling of a two-second sound sequence was not admissible under the German Copyright Act (UrhG). In music, “sampling” is the act of taking a portion of one sound recording and reusing it in a different song or piece. Sampling is particularly common in modern hip-hop and electronic music.

The complainants argued that the Federal Court of Justice rulings violated their fundamental right to artistic freedom enshrined in Art. 5 para. 3 of the German Basic Law (Grundgesetz, GG). On 31 May 2016, the First Senate of the Federal Constitutional Court granted the constitutional complaint.

Earlier Cases Before the Federal Court of Justice

In 1977, the German band (and recent Grammy honorees) Kraftwerk released a song called “Metall auf Metall,” which they also produced. The defendants sampled a sequence of two seconds from “Metall auf Metall,” put the sample on a loop and used it as the continuous rhythmic layer for a rap song. The Federal Supreme Court ruled that this act constituted an infringement of Kraftwerk’s copyright-related right as producers of the original sound recording (sec. 85 para. 1 of the German Copyright Act). The “free use” exception (sec. 24 para. 1 of the German Copyright Act) was not considered applicable in this case because, essentially, it would not have been unreasonably cumbersome for the defendants to produce a “sound-alike” rhythm sequence.

Key Considerations of the Federal Constitutional Court

The Federal Constitutional Court held that where the act of sampling only slightly limited the possibilities of exploitation, the interests of the holder of a copyright (or a related right of the phonogram producer) may have to cede in favour of artistic freedom.

The presumption by the Federal Court of Justice that even the inclusion of a very brief sound sequence interfered with Kraftwerk’s right to protection if a sound-alike sequence could have been produced did not, in the eyes of the Federal Constitutional Court, pay adequate attention to the right to freedom of artistic expression. There was no evident risk that Kraftwerk would suffer from a decline in sales through the adoption of the sound sequence into a song that did not show much similarity to the original sound recording. Only in cases of a high degree of similarity between the songs at issue could one actually presume that the new work will compete with the original work.

The case was sent back to the Federal Court of Justice to allow it to give constitutionally appropriate consideration to both the freedom of artistic activity and the protection of the phonogram producer’s property rights. In its judgment, the Federal Constitutional Court also emphasized that the Federal Court of Justice, first of all, has to assess whether, due to the primacy of application of European Union law, there was still room for the application of German law. The final words in this matter have yet to be spoken.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

Sound Mixer

In music, “sampling” is the act of taking a portion of one sound recording and reusing it as an instrument or a sound recording in a different song or piece. In 2013, several artists and music production companies filed a constitutional complaint with the German Federal Constitutional Court against two Federal Supreme Court rulings (I ZR 112/06I ZR 182/11) that Continue Reading German Federal Constitutional Court to Rule on Legality of Sampling in Music