Photo by Ana Grave on Unsplash.
A six-year long legal battle involving one of the greatest rock bands in history, Led Zeppelin, came to a close on October 5, 2020, when the United States (US) Supreme Court declined leave to appeal from a US appeals court decision in favor of the defendant. This copyright infringement case, Skidmore v Led Zeppelin, exemplifies how a 2014 US Supreme Court decision, Petrella v Metro-Goldwyn-Mayer, Inc.,[1] allows plaintiffs to bend the law in their favour and, in doing so, squander court resources.
The litigation process began in 2014, when Michael Skidmore, acting as trustee of the Randy Craig Wolfe Trust, filed a copyright infringement suit against Led Zeppelin, its band members, and its music producers.[2] The claim was that Led Zeppelin’s guitarist Jimmy Page and vocalist Robert Plant had copied portions of Taurus, an instrumental song written by guitarist Randy Wolfe and performed by his band, Spirit.[3] Skidmore alleged that the beginning of Led Zeppelin’s iconic hit song, Stairway to Heaven, was “substantially similar” to Taurus, and sought damages.[4]
Given the fact that Led Zeppelin had performed at the same venue as Spirit on at least three separate occasions between 1968 and 1970, this was not an unsubstantiated claim.[5] After these encounters with Spirit, Led Zeppelin recorded Stairway to Heaven, which was then released as part of the album Led Zeppelin IV in 1971.[6] The likeness of the two songs was clear to all who listened, and Randy Wolfe himself, the late frontman of Spirit, acknowledged the similarity.[7] In a 1991 interview, when asked whether he had any suspicions of Led Zeppelin copying Taurus, Wolfe stated that “[he’ll] let [Led Zeppelin] have Taurus for their song without a lawsuit”.[8] Wolfe remained steadfast in this regard; he never brought legal action against Led Zeppelin before his death in 1997.[9]
Almost two decades later, the US Supreme Court in Petrella held that the doctrine of laches (unreasonable, prejudicial delay in asserting a claim) cannot be invoked by a defendant to bar a copyright infringement claim for damages brought within the statutory limitation period.[10] Noticing an opportunity to both accredit the true composer behind Stairway to Heaven and obtain millions in damages, Michael Skidmore initiated legal action against Led Zeppelin for copyright infringement just days after the Petrella decision was released.[11]
Judicial History
As mentioned above, despite a complex and lengthy judicial process, the claim was ultimately unsuccessful.
In 2016, the defendant brought a motion for summary judgment as to the copyright infringement claim, which was denied.[12] The case then went to a five-day trial, where the jury returned a verdict in favour of Led Zeppelin. Skidmore appealed, and in 2018, the Court of Appeals for the Ninth Circuit vacated the first instance judgment and remanded the case for a new trial.[13]
On appeal once again in 2020, a Ninth Circuit panel rejected each of Skidmore’s contentions in turn.[14] First, the appeals court ruled that the scope of the copyright was confined to the deposit copy, and concluded that the district court rightfully declined Skidmore’s requests to play the sound recordings of the Taurus performance for the jury or to have the recordings admitted as evidence.[15] Second, the appeals court dismissed each of Skidmore’s arguments based on jury instructions given by the district court, and affirmed that the lower court did not err in its instructions.[16] Notably, the appeals court overturned precedent by abrogating the “inverse ratio rule”, which allowed for a lower standard of proof of substantial similarity between works where there is a high degree of access.[17]
The Ninth Circuit court upheld the trial court judgment that Led Zeppelin’s Stairway to Heaven was not substantially similar to Taurus.[18] By refusing to take up the case, the US Supreme Court brought an end to the Led Zeppelin/Spirit legal saga, affirming the outcome of the appellate court with finality.
The Importance of a Strict Limitation Period
It is clear from the summary of events that the legal feud between Skidmore and Led Zeppelin was particularly drawn out. As the Ninth Circuit appellate court put it, “[t]he trial and appeal process has been a long climb up the Stairway to Heaven.”[19] Where the copyrighted material at issue was written over half a century ago, the plaintiff knew of the infringing work decades before a claim was brought, and the plaintiff had even made a statement implying that he would not sue for copyright infringement, it is natural to wonder how this case endured through the court system for as long as it did.
The reason this case was not dismissed from the outset is due to the fact that Led Zeppelin had re-released Led Zeppelin IV in 2014.[20] According to US law, the limitation period for civil copyright claims is three years.[21] However, the three-year limit renews with every republication of the work. Flowing from the Petrella decision, the copyright limitation period, at least for music, became effectively “perpetual”[22], except under “exceptional circumstances”[23], because laches could no longer be invoked as a defense. So, even though the original three-year limitation period had long passed, the republication of Stairway to Heaven initiated a new statutory period, allowing Skidmore to pursue litigation without fear of retribution for unreasonable delay in bringing the claim.
If one of the goals of the justice system is truly to promote accessibility and efficiency, and to prevent court backlog, a case rife with as many indicators of failure as Skidmore v Led Zeppelin should never have been permitted to reach the trial stage. This case is a perfect example of how the copyright limitations framework buttressed by Petrella can give rise to frivolous suits which consume both private financial and court resources. One of the main reasons for the existence of a statutory limitation period is that the evidence to prove or refute a claim based on an event that took place decades in the past has either disappeared or has been rendered useless for lack of reliability. Although Stairway to Heaven had been republished in 2014, the republication was no different than the version initially released in 1971. The song did not change to become more similar to Taurus, and neither did the evidence required to prove or disprove the similarity between the two works or the amount of access the defendant had to the copyrighted material. If the republication of the work is no different than the original, and reliable evidence is scant as a result of the delay in bringing a claim, why should the limitation period extend for potentially as long as the lifespan of the copyright itself?
In my view, the US Supreme Court should have agreed to hear the case and, although not a direct issue on appeal, taken the opportunity to re-evaluate its decision in Petrella in light of how Skidmore v Led Zeppelin transpired. Judges should do everything in their power to preserve the scarce resources of the court system – and a potentially perpetual limitation period, which Petrella has allowed plaintiffs to exploit with no repercussions, runs afoul of this goal. Alas, until the Petrella decision is reviewed or congress intervenes, this long and costly legal process will remain all too common for US citizens seeking to defend against a should-be expired copyright infringement claim.
Written by Phoebe Goldig, a 2L student at Osgoode Hall Law School, and the Co-Director of Marketing and Promotions for the Osgoode Entertainment and Sports Law Association.
[1] Petrella v Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) [Petrella].
[2] Skidmore v. Led Zeppelin, No. CV 15-3462 RGK (AGRx), 2016 WL 1442461 (C.D. Cal. Apr. 8, 2016) [Skidmore 1].
[3] Skidmore 1, Ibid.
[4] Skidmore 1, Ibid.
[5] Skidmore 1, Ibid.
[6] Skidmore 1, Ibid.
[7] Skidmore 1, Ibid.
[8] Skidmore 1, Ibid.
[9] Skidmore 1, Ibid.
[10] Petrella, supra note 1.
[11] Joseph A Greene, “Skidmore v. Led Zeppelin: Extraordinary Circumstances and Perpetual Statute of Limitations in Copyright Infringement” (2017) 69:2 Me L Rev 307 [Greene].
[12] Skidmore 1, supra note 2.
[13] Skidmore v Led Zeppelin, 905 F.3d 1116, 1134 (9th Cir. 2018).
[14] Skidmore v Led Zeppelin, No. 16-56057 (9th Cir. 2020) [Skidmore 2].
[15] Skidmore 2, Ibid.
[16] Skidmore 2, Ibid.
[17] Skidmore 2, Ibid.
[18] Skidmore 2, Ibid.
[19] Skidmore 2, Ibid.
[20] Greene, supra note 11.
[21] Petrella, supra note 1; 17 U.S.C. § 507(b).
[22] Greene, supra note 11.
[23] Petrella, supra note 2.