Where will the „Stairway to heave” lead to?

The issue of music plagiarism on the example of the case against Led Zeppelin. The controversial issue of music plagiarism (already addressed on this blog (is gathering more harvest in terms of copyright law. The US Court of Appeal (9^th District) overruled the judgment of the Federal Court of Los Angeles that was favourable for Led Zeppelin in the widely publicised case of alleged plagiarism of the intro to the rock anthem. Thus, the trial will have to re-start from scratch.

The original lawsuit was brought by Michael Skidmore, the estate administrator of Randy Wolfe, the guitarist of the Spirit rock group, and ended successfully for the popular Zeppelins. At that time the court ruled that the intro of ‘Stairway to Heaven’, which has become legendary for rock fans, is not a plagiarism of the riff from Spirit’s song ‘Taurus’.

What happened?

Although the court hearing the appeal measure overruled the judgment for formal reasons, at the same time it presented its opinion on the analysed issue. In the judge’s opinion, although individual notes or the scale do not constitute a work that may be subject to copyright protection, the conclusion does not apply to their combination. More importantly, the conclusion of the court of first instance that copyright does not protect a chromatic scale, arpeggios or short sequences of three notes, has been found incorrect.

Further implications

Considering the uniqueness and distinctive features of the US legal system, this judgment must nonetheless not be seen only as a curiosity. Although its theses are in line with the tendency to liberalise copyright premises, the court’s argument manifests a new approach and differs from the current understanding of the limits of music plagiarism.

Analysing this judgment from the point of view of Polish regulations, it is first and foremost to be noted that according to the position of academic lawyers, in order to determine whether a piece of music has been plagiarised, it is necessary to answer two questions first: would the allegedly copied musical form be subject to protection in the first place? And secondly, is there a likelihood of so called parallel work? Is it therefore possible that two authors could have achieved the same effect independently of each other? [i]

When answering the first question it must be emphasised that despite ‘the myth of four measures’ (a number which is typically denied protection) which has already been described on this blog, it seems beyond dispute that the length of a musical motif is immaterial from the point of view of assessing the fulfilment of the premises set out in Art. 1 of the Act on copyrights and related rights. The only requirement is that the specific result is a manifestation of the individual human creativity. Obviously, it is easier for a longer musical form to fulfil these requirements.

A combination of three notes

Although, as indicated, it is impossible to establish a specific quantitative threshold for assessing whether the creative elements of another work have been replicated, the thesis that a combination of three notes is already subject to protection is at least controversial. Just as we would have no doubt whatsoever that three words to not predestine a fragment of a poem or fiction to obtain copyright protection, the issue of three notes must be approached in the same way[ii]. It seems therefore that a negative answer should be given already to the first question.

Parallel work

As regards parallel work (the second question), it is worth emphasising that in music the likelihood of its occurrence is very high. This is due to the obvious limitations of musical language, and in addition, the use of established patterns and solutions which result from hearing conventions[iii]. This is because the number of compositions which are well received by the human ear is limited.

The court which will be re-hearing the alleged plagiarism by Jimmy Page and Robert Plant is facing a major challenge. On one hand, it must take into account the directions of the appeal court, and on the other it must consider that admitting that the intro to ‘Stairway to Heaven’ was a plagiarism will have serious legal as well as cultural repercussions.

Apart from these considerations we will not attempt to predict a judgment at this point. We look forward to further developments in the case.

Legal consequences

Leaving aside the Led Zeppelin case, let us remind, that on the grounds of the Polish law a party guilty of plagiarism faces civil as well as criminal liability. Appropriation of authorship or misleading as to authorship of an entire or a part of some else’s work or artistic performance is punished by a fine, restriction of freedom or up to 3 years imprisonment. However, for some authors civil liability may be even more onerous if they were required to publish an apology or pay substantial amounts in damages.

[i] cf. G. Mania, Plagiat muzyczny [Music plagiarism], ZNUJ 2016/3, el./LEX, para 1

[ii] It must of course be noted however, that it is in no way possible to classify a three word expression or even a neologism as a work within the meaning of copyright law. It would have to be an exceptionally ingenious, abstract combination.

[iii] cf. G. Mania, Plagiat muzyczny [Music plagiarism], ZNUJ 2016/3, el./LEX, point 6