“All epic anthems must measure themselves against ‘Stairway to Heaven,'” Rolling Stone wrote of the Led Zeppelin classic on its 500 Greatest Songs list in 2011. Guitarist Jimmy Page said the song “crystallized the essence of the band.” And ever since a copyright infringement suit was brought against Zeppelin in 2014, people have questioned whether that essence is fraudulent.
Led Zeppelin were sued by Michael Skidmore, administrator of the trust of the late Randy Wolfe (a.k.a. Randy California), who wrote a ghostly instrumental track called “Taurus” in 1968 for his band Spirit. Wolfe died in 1997. The instrumental cut he wrote, Skidmore claimed, is the original Medieval-sounding ascending scale heard in “Stairway,” which Led Zeppelin released on its untitled 1971 record.
To prove copyright infringement, the plaintiff must show that the defendant had reasonable access to the original work and that the works sound substantially alike. The court found that Page had the Spirit album (the band’s self-titled 1968 debut) in his personal collection. Led Zeppelin also covered Spirit’s song “Fresh-Garbage,” which appears on the same album as “Taurus.” The court found that the respective arpeggiated melodies of “Taurus” and “Stairway” sounded enough alike that a jury should weigh in.
Similar issues were at play up in 2013’s “Blurred Lines” case, which ended with musicians Pharrell Williams and Robin Thicke being found guilty of infringing upon Marvin Gaye’s song “Got to Give It Up.” Defendants were ordered to pay a reduced sum of $5.3 million. The case is now on appeal.
Christopher Sprigman, an intellectual-property and copyright-law professor at New York University, believes the “Blurred Lines” case was botched. “They didn’t copy the melody or the lyrics,” Sprigman told Rolling Stone. “They only copied the bass line, which was absolutely a standard funk walking bass line.” Sprigman contends that the jury likely connected the general vibes of the two works – the cowbell percussion and funk instrumentation – and that’s not actionable, he says: “That was a terrible verdict.”
The “Stairway” case is a little different than “Blurred Lines.” The composition of “Stairway to Heaven” includes the melody and the chord progressions heard in the “Taurus” clip. Led Zeppelin’s camp maintains that the song is rooted in musical traditions that go back thousands of years to Celtic folk music. The songs are similar because Spirit shared those musical touchstones, Led Zeppelin’s lawyers claim.
The all-art-comes-from-prior-art stance often leads to a cyclical argument in copyright cases: The Beach Boys ripped off Chuck Berry, the Rolling Stones ripped off Muddy Waters, and so on. “Bob Dylan copied a lot of things from Woody Guthrie, who copied a lot of from Mississippi bluesmen,” Sprigman says, but in his view, what Dylan produced was no less new than the works that inspired him.
“You don’t take what someone else has created and then portray them as being in the wrong when they complain about not getting paid.” –Richard Busch
“I hear all the time from the defense side that all music is based on something else,” attorney Richard Busch told RS. “But that is, like most generalizations, wrong.” The law doesn’t reward best work; the law protects original work. “[Infringement] is easily tested by the introduction of evidence by the defendant of prior art that the court can compare to the plaintiff’s work. Either the defendant can produce that or he cannot.” Busch, partner at Nashville firm King and Ballow, has argued hundreds of copyright suits. He won the landmark 2004 case where Funkadelic sued N.W.A for sampling a guitar riff. That decision set a legal precedent that all sampled music, however small the sample, must be licensed before use. This month, he argued the other side of copyright law, proving that “Vogue” by Madonna was not guilty of infringement. Busch also represented the Marvin Gaye family estate in the “Blurred Lines” case. Creative morality is hugely important in copyright law, he says.
“It’s easy to make a statement that all art comes from prior art,” says Busch. “But people who want to say they’re paying tribute if they just steal it, it’s disrespectful.” As Busch sees it, Pharrell and Robin Thicke intentionally evoked Marvin Gaye’s “Got to Give It Up” to make money, but they didn’t go through the process of properly licensing the song. “You don’t take what someone else has created,” he says, “and then portray them as being in the wrong when they complain about not getting paid for it or credited for it.”
The morality of creative songwriting is significant, says Busch, who is currently representing the songwriters suing Ed Sheeran for copyright infringement. “A lot of these artists and songwriters depend on the royalties and revenue from their work in order to live,” he says. For the “Blurred Lines” case, the defense asserted the “prior art” argument – that the bass line is a musical standard – but ultimately, they couldn’t prove it. “They also did not produce evidence of any work remotely close to Gaye’s song ‘Got to Give It Up,'” Busch said.
Will the prior-art argument stand in the Led Zeppelin case? Some would say it doesn’t matter. “People don’t fault Shakespeare for taking poetry from lesser writers and turning it into Antony and Cleopatra,” Sprigman says. “‘Taurus’ by Spirit is a forgotten song; ‘Stairway’ is the opposite, in part because Led Zeppelin took something from Spirit and made it so much better.
“They weren’t just better musicians [than Spirit],” he concludes. “They were better artists.”