Day three of the copyright infringement trial between Led Zeppelin and Sixties rockers Spirit over the authorship of “Stairway to Heaven” continued with the plaintiffs’ contentious examination of iconic Zeppelin guitarist and songwriter Jimmy Page.
Expectations were high that attendees would be treated to a possible courtroom performance from Page and his co-defendant, Zeppelin singer Robert Plant. As on Wednesday, Page entered chambers with a guitar, though on Thursday, a Yamaha electric piano was also rolled in behind him. Alas, Francis Malofiy – the counsel representing the suit brought by Michael Skidmore, trustee of the estate of Spirit guitarist Randy “California” Wolfe – began by attempting to get Page to admit he might’ve heard and been influenced by “Taurus,” a Spirit instrumental composed by Wolfe. Page gave Malofiy no quarter: When asked on the stand if he was able to read and write music, Page replied, “To a degree.”
Presiding judge Gary Klausner frequently reprimanded Malofiy, demanding he focus his inquiry only on the similarity between “Stairway” and the “deposit copy” (the sheet music transcription of “Taurus” deposited in the Library of Congress). A prolonged conversation about the musical structure, rhythms, arpeggiation and chording of “Stairway” found the guitarist often befuddled by Malofiy’s queries. One entertaining moment, however, occurred when Malofiy played the Mary Poppins classic “Chim Chim Cher-ee” from the Disney film to discuss its use by Page as a potential inspiration for “Stairway,” causing the rock legend to smile broadly. Malofiy’s rambling and pauses caused Judge Klausner to exclaim “you’re wasting a lot of time” – a refrain that would be repeated throughout Malofiy’s examinations.
The potential for a mistrial appeared to become an increasing possibility. Led Zeppelin’s lawyer, Peter Anderson, objected about the plaintiffs not providing evidence discussed in the trial. “We don’t believe this is an exhibition produced by us or provided to us by the plaintiff,” Anderson said about an audio recording of a vintage Page interview for the rock mag Zig Zag.
Anderson also claimed Malofiy had presented to Page a “composite document,” a batch of multiple documents combined into one – forbidden, as it obscures for the opposing counsel what’s being referred during witness examination. The defense also claimed that Malofiy had attempted to influence the proceedings with contracts signed by Page that had been deemed confidential during pre-trial. “The discovery [in this trial] has been abominable!” Judge Klausner exclaimed upon yet another such objection sustained against Malofiy.
The Spirit/”Taurus” side may have scored, however, when they called their expert witness Dr. Alexander Stewart, a musicologist, professional saxophonist and music professor at the University of Vermont. The most credible, sympathetic and compelling witness to take the stand in the trial other than Page himself, Dr. Stewart cogently and clearly explained the sophisticated music theory at issue for the first time during the proceedings.
More significantly, he powerfully described the close similarities between the compositions, and scrappily held his own under a tough cross-examination by Zeppelin’s counsel. Particularly damning was Dr. Stewart’s analysis that, in their chord progressions, both “Taurus” and “Stairway” “in an unusual way” skip the “E” before resolving on an “A” note. Under oath, he claimed that this was unlike any of the 65 “prior art” examples of compositions using similar chordal and compositional structures submitted by the defense (including Henry Purcell’s “Dido’s Lament,” the Beatles’ “Michelle” and the standard “My Funny Valentine”).
Stewart also affirmed that none of the “prior art” examples have the “unique and distinctive elements” that “Taurus” and “Stairway” share, and that are protectable under copyright law. Dr. Stewart also pointed out that the analyses presented as evidence by the defense’s expert witness, the noted musicologist Lawrence Ferrara, did not take into account the treble clef in the sheet music for “Taurus,” which accounts for “55 percent of the notes [in the song].” “Of the 43 different pitches between the compositions, not a single one is different,” Stewart testified. (Day 3 of “Michael Skidmore vs. Led Zeppelin et al” also featured Kevin Hanson – a guitarist who has performed and recorded with Jay Z, Usher, The Roots, Jill Scott and the Isley Brothers – testifying on behalf of the plaintiff.)
The plaintiff did reveal what may be its key advantage. A major point in both sides’ cases is the statute of limitations around “Stairway” royalties. Through examination of Page, Malofiy revealed that a previously unreleased version of “Stairway” – included in a companion disc of alternate mixes from Led Zeppelin IV done by Page and engineer Andy Johns as part of a recent series of Zeppelin reissues – may actually be liable under the three-year statute of limitations at issue in the case.
It was a moment of actual tension in what was otherwise a relentless barrage of tedious legalese, suggesting that no assumptions can be made yet about who will prevail in “Michael Skidmore vs. Led Zeppelin et al.” As a comment by Robert Plant made in another 1970s-era interview played for the court stated, hopefully “good will will prevail and logic will reign over the whole thing.”Jimmy Page testified on the second day of the “Stairway to Heaven” copyright infringement trial. Watch here.