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We have moved

After three years in Parnell, we’ve decided to make the move into Auckland’s CBD.

As of 1 March 2017, our offices are located at Level 17, The Shortland Centre, 55 Shortland Street, Auckland (opposite the Vero Centre).

Our postal address and other contact details have not changed. And we will continue providing legal services to clients all around the country.

Stop by for a coffee if you’re in the area.

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Taurus v Stairway to Heaven: copyright infringement or a load of bull?

It is a rock classic, and the most well-known of all Led Zeppelin’s anthems. Stairway to Heaven is estimated to have earned the band over half a billion dollars in royalties and record sales since its release in 1971.

But the band have been trying to fend of claims that the song infringes the copyright in another track, Taurus, by the band Spirit.

 

Randy Wolfe, who wrote Taurus, died in 1997, but a lawsuit was filed in 2014 in the US by a trust established to represent him. That lawsuit claims that the famous instrumental opening of Stairway was copied from Taurus. Led Zeppelin offered No Quarter and sought to have the claim thrown out, but instead Judge R. Gary Klausner ruled on 8 April 2016 that there was enough evidence to proceed with a jury trial. You can read the full decision here 

In most copyright infringement cases there is no direct evidence of copying. Instead, under US copyright law at least, the plaintiff in a copyright case may establish copying by showing that the defendant had access to the plaintiff’s work and that the two works are substantially similar in idea and in expression of the idea.

Evidence of access

There are literally millions of songs in the world, so in musical copyright cases of this kind it can often prove difficult for a plaintiff to prove that a defendant had access to an allegedly-infringed work, unless that work was popular or well-known, or there was some other circumstance or interaction that made it more likely that the defendant would have had access.

In this case, the court heard evidence that the two bands performed at the same festival on the same day three times between 1968 and the release of Stairway in 1971. On two of those occasions the two groups performed in succession, although there was conflicting evidence about whether Spirit played Taurus during those performances. There was other evidence produced challenging testimony by Led Zeppelin's Jimmy Page that he “has never seen Spirit perform live,” including two interview excerpts in which Page admitted that he was a fan of Spirit and had attended several shows. Additionally, the Led Zeppelin band members had previously admitted to performing a bass riff similar to one featured in one of Spirit’s other songs, a song that appeared on the same album as Taurus, although the band members claimed they first heard that other Spirit song on the radio.

The judge accordingly determined that there was enough evidence of access to put the issue to a jury.

Overall, Plaintiff has produced sufficient circumstantial evidence to raise a factual dispute on the issue of access. He has presented evidence that both bands performed in succession and actually interacted at two festivals. Moreover, Plaintiff submitted evidence that Spirit would often perform Taurus because it was arguably Wolfe’s favorite song. Beyond the two concerts, Plaintiff also proffers evidence that Led Zeppelin played one of Spirit’s songs that appeared on the same album as Taurus. Finally, he presents impeachment evidence to counter Page’s declaration that he never saw a Spirit performance.

 Substantial similarity

 The judge noted that once all the unprotected performance elements were stripped away, the only remaining similarity between the two songs was the core, repeated A-minor descending chromatic bass line structure. 

The similarity consists of repeated A-minor descending chromatic bass lines lasting 13 seconds and separated by a bridge of either seven or eight measures. Moreover, the similarity appears in the first two minutes of each song, arguably the most recognizable and important segments of the respective works.

 Led Zeppelin’s lawyers tried to argue that the descending chromatic bass line was a centuries-old, common musical element not entitled to copyright protection. However, the judge was not persuaded.

While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure. For example, the descending bass line in both Taurus and Stairway to Heaven appears at the beginning of both songs, arguably the most recognizable and important segments.

Ruling leaves some Dazed and Confused

Understandably, the ruling has alarmed many in the music industry, not least because because of the huge amount of money at stake, and the fact that the case was allowed to proceed more than forty years after the alleged infringement first occurred. There is no dispute that Led Zeppelin has borrowed heavily from other musical styles and genres over the years. But there is a difference between borrowing a musical theme or a style, and wilfully (or even subconsciously) copying someone else's copyright work. Some fear that the ruling could lead to a flood of similar copyright claims. Could this be the moment When the Levee Breaks?

But the judge’s ruling is not a determination that Stairway infringes copyright in Taurus. It simply means that the question of infringement will be put to a full jury. The claim that Stairway infringes copyright in Taurus may not have been Trampled Under Foot, but it may still turn out to be a load of bull.

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Australian case clarifies when a patent licence can be terminated

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