Michael Skidmore v. Led Zeppelin
905 F.3d 1116
9th Cir.2018Background
- Randy Wolfe (Spirit) wrote “Taurus” in 1966; Hollenbeck registered the composition in 1967 and deposited sheet-music (the deposit copy). Wolfe later died and the Trust (Skidmore, trustee) sued Led Zeppelin claiming “Stairway to Heaven” copied “Taurus.”
- Case tried to a jury in the Central District of California: jury found Skidmore owned a valid copyright and that Defendants had access, but found no extrinsic substantial similarity and returned a verdict for Defendants.
- The district court held the 1909 Copyright Act governed, ruling that for unpublished works the deposit copy (sheet music) defines the protected scope, and excluded Spirit sound recordings from the substantial-similarity comparison (but allowed listening outside the jury for access questioning).
- Trial rulings of note: court declined to give a "selection-and-arrangement" instruction; instructed that common musical elements (e.g., chromatic scales, short three-note sequences) are not protected; excluded recordings from jury listening under Rule 403; refused to exclude Defendants’ expert Dr. Ferrara despite his prior work for a third party.
- On appeal Skidmore challenged several jury instructions (selection/arrangement, originality, inverse-ratio rule), the deposit-copy ruling, exclusion of recordings for access, denial of sanctions against Dr. Ferrara, and trial time limits. The Ninth Circuit vacated in part and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction on selection & arrangement (protectability of combinations of unprotectable elements) | Skidmore: court should have instructed that selection and arrangement of unprotectable musical elements can be copyrightable | Defendants: issue waived or harmless; no theory/ evidence of selection-and-arrangement was presented | Reversed: failure to instruct was legal error and prejudicial; remand for new trial with appropriate instruction |
| Originality instructions (treatment of public-domain elements and short sequences) | Skidmore: instructions misstated law by implying public-domain elements (chromatic scales, 3-note sequences) cannot be protected even when originally arranged | Defendants: no timely objection/waiver; instructions were proper | Reversed: instructions misstated Ninth Circuit law (low originality bar; combinations can be protected); prejudicial when combined with omission of selection-and-arrangement instruction |
| Scope of copyright under 1909 Act (deposit copy v. sound recordings) | Skidmore: deposit copy was archival; sound recordings should define scope or at least be admissible for substantial-similarity comparison | Led Zeppelin: under 1909 Act unpublished works’ protection is defined by the deposited sheet-music; sound recordings are not the registered work | Affirmed: for unpublished musical works under the 1909 Act the deposit copy defines the scope of copyright; district court did not err on that point |
| Exclusion of Spirit sound recordings for jury (use to prove access) | Skidmore: jury should have heard recordings and observed witness reactions to assess credibility on access | Defendants: recordings were prejudicial/confusing and properly excluded under Rule 403 | Reversed in part: district court abused discretion excluding recordings from jury entirely for access; probative value outweighed prejudice and limiting instruction could mitigate risk |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (originality requires independent creation and minimal creativity)
- Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir.) (framework distinguishing copying and unlawful appropriation; inverse-ratio rule context)
- Swirsky v. Carey, 376 F.3d 841 (9th Cir.) (combination/selection-and-arrangement of musical elements can be protectable)
- Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir.) (extrinsic/intrinsic tests; substantial-similarity analysis in music cases)
- Satava v. Lowry, 323 F.3d 805 (9th Cir.) (combination of public-domain elements protectable if original in selection/arrangement)
- ABKCO Music, Inc. v. LaVere, 217 F.3d 684 (9th Cir.) (treatment of publication and deposit requirements under the 1909 Act)
- Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir.) (inverse-ratio rule requires high degree of access)
- Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (Sup. Ct.) (laches not a bar to timely copyright claims)