Editorial: Climbing a ‘Stairway’ to the courthouse
Forty-five years after Led Zeppelin released what may be the world’s most recognizable rock song, a federal court jury is considering whether “Stairway to Heaven” songwriters Jimmy Page and Robert Plant stole one of its musical phrases from an obscure instrumental by the somewhat less legendary California rock band Spirit.
That the estate of late Spirit songwriter Randy California (né Wolfe) could pursue a copyright infringement lawsuit so long after “Stairway” became a staple on rock radio is one of the odd features of copyright law. As the Supreme Court had held in 2014, 12 days before the Wolfe estate filed suit, Congress allowed copyright holders to recover damages for up to three years after any unauthorized copy is made or sold — not just the first copy. No matter that the passage of time makes it harder to defend against an infringement claim, as faded memories and discarded documents make it difficult to re-create the process by which a disputed work was created.
Expert witnesses will help the court determine whether those eight bars are close enough technically to constitute copying. Ultimately, however, it will be up to jurors to decide whether Page and Plant actually borrowed from Wolfe’s song. To do so, they’ll have to find that the two British rockers had access to “Taurus” before writing “Stairway” — the bands toured together in the late 1960s, before “Stairway” was released, although Page testified he didn’t hear “Taurus” until he was sued — and that the two works are “substantially similar.” The greater the access, the less striking the similarities have to be in order to constitute infringement.
There are, in fact, a number of points in common between the disputed segments of the two compositions. Specifically, they both are largely in A minor, cover eight measures, have a descending bass line and have much the same rhythmic pattern. You can’t help but notice how much alike those phrases sound.
Innovation isn’t the only result, however. Led Zeppelin has been forced several times to acknowledge that it borrowed heavily from other musicians, including American bluesmen Willie Dixon and Howlin’ Wolf; on at least five occasions, it added other songwriters’ names to the credits when its works were reissued. Still, there are clear differences between the musical phrases at issue in the latest lawsuit, and sometimes even a small change in a chord pattern or arrangement can separate a song that connects with listeners from one that doesn’t.
Copyright law doesn’t care how well a song sells (even though plaintiffs clearly do; no one accuses a failed songwriter of plagiarism). The question for the jurors in the “Stairway” case is whether the disputed phrases are so similar that Page and Plant must have copied from Wolfe. Their decision could give artists a bit more guidance on what constitutes originality in a field where so much is shared, borrowed, mashed together and reinvented.
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