Attorneys for members of rock giant Led Zeppelin and the estate of the man alleging they stole musical elements of their iconic song “Stairway to Heaven” made final pleas to jurors Wednesday as the high-stakes copyright trial came to an end.
In his closing arguments, Francis Malofiy, the attorney for the estate of singer Randy Wolfe, returned to simple themes he raised at the start of the weeklong trial, of fairness and giving due credit.
“We respect and we value creation,” Malofiy told the panel of four men and four women. “Creation does not mean copying.… Creation means doing something that is unique and memorable.”
But Peter Anderson, who represents Zeppelin guitarist Jimmy Page, singer Robert Plant and various music companies associated with the band, pushed back pointedly, saying Malofiy had failed at every turn to make his case. Anderson argued there had been no compelling evidence that Zeppelin members ever heard a performance of Wolfe’s song “Taurus” and that any similarities between the two songs were because both relied on “basic building blocks of music” that are owned by no one.
The jury deliberated for about four hours Wednesday but failed to reach a verdict. Discussions are scheduled to resume Thursday morning.
At stake are potentially millions of dollars in royalty payments, which would go to the estate of Wolfe, the guitarist for Spirit, an L.A. band that, while largely forgotten today, gained some popularity in the late 1960s and ‘70s for their novel blend of rock, jazz and other styles. Wolfe died in 1997.
The suit follows another high-profile infringement case last year in which R&B-soul singer Marvin Gaye’s family was awarded $7.4 million by a jury that decided pop stars Robin Thicke and Pharrell Williams’ monster hit “Blurred Lines” had infringed on Gaye’s “Got to Give It Up.” A judge later reduced the award to $5.3 million.
The disputed musical ground at issue in the trial comes down largely to a brief passage that arrives 45 seconds into “Taurus,” an instrumental from Spirit’s 1968 debut album. Those notes, which evoke centuries-old Renaissance folk music, sound similar to the opening guitar chords of “Stairway,” which was released in 1971, three years after “Taurus.”
Malofiy struggled with a difficult legal obstacle throughout the trial: U.S. District Judge R. Gary Klausner ruled the jury would not hear “Taurus” the way Spirit performed and recorded it. Instead, sticking to well-established copyright law, the judge ruled the only version of the song in question was the sheet music submitted to the U.S. Copyright Office.
The attorney tried several times to make the jury aware of the recording of “Taurus,” but was stopped by Klausner, who admonished Malofiy repeatedly for inappropriate lines of questioning, procedural missteps and other gaffes.
Malofiy made one last audacious try Wednesday in his closing argument, reminding jurors that Page and Plant had not wanted them to hear “Taurus” with all its parts. Klausner interjected, telling Malofiy the bid was “inappropriate.”
The similarities between the two songs, he said, stemmed from a “very unique” progression of chords moving down the musical scale that Wolfe used in “Taurus” and that appear in “Stairway” as well.
In trying to underscore opportunities Zeppelin members had to hear the song, Malofiy portrayed Page and Plant as being dishonest and having “selective memories.” He zeroed in on interviews Page gave at the time praising Spirit’s music and his testimony during the trial that he owned an album with “Taurus” on it, but never listened to the song.
“Are those convenient facts they’re remembering? Is that selective memory? Or is that what really happened?” Malofiy asked.
Anderson followed, framing the case as a series of baseless accusations that Malofiy had promised the jury he would prove and then failed to make good.
He pointed to what he said were gaping holes in the case, including the claim that a music company, not Wolfe, owned the copyright to “Taurus.” To underscore his point, Anderson noted that Malofiy failed to produce the original registration of the copyright claim for the song.
And claims that Zeppelin had watched Spirit perform at various music festivals fell far short as well, Anderson said.
“There has been no evidence showing that ‘Taurus’ was performed live at any performance where members of Led Zeppelin were in attendance,” Anderson said.
Malofiy’s claim that the composition of “Taurus” was musically unique didn’t hold up either, Anderson said. He recapped the testimony of dueling musicology experts, saying even the professor who testified against Zeppelin had to concede the descending chord progression underlying each song was a common musical element.
In a significant boost to Zeppelin, Klausner instructed jurors before they began deliberations that the string of chords in question was an example of a common musical device that cannot be copyrighted.
Anderson also questioned the amount of money Malofiy’s financial expert said “Stairway” has earned, saying the band’s experts showed the figure was improperly calculated and grossly exaggerated in an attempt to maximize damages the jury might award. While Malofiy claimed the value of the song could be pegged as much as $24 million, Anderson said the figure was less than $1 million.
In addition, several “irrelevent” issues Malofiy raised during trial should be ignored, Anderson argued. They included extensive testimony about a Spirit performance in Birmingham, England, that Plant may have attended.
“There has been no evidence presented that “Taurus” was performed at that show.... It’s a red herring,” Anderson said.
5:30 p.m. This story was updated with information on the jury failing to reach a verdict Wednesday.