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Sparks From En Banc Arguments In Song Suit Against Led Zeppelin

By Scott Graham
November 01, 2019

There was much harmony along with a few discordant notes as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit took up the copyright case involving Led Zeppelin's "Stairway to Heaven." All the judges who spoke during oral arguments in Skidmore v. Led Zeppelin, 16-56057, seemed to agree that sheet music deposited with the U.S. Copyright Office, not a sound recording of it, defines the scope of copyright for a musical work governed by the 1909 Copyright Act. That prompted bitter protests from Francis Malofiy, the attorney representing the estate of Randy Wolfe (p/k/a Randy California), which alleges that Led Zeppelin copied Wolfe's 1967 song "Taurus" when the group wrote "Stairway to Heaven."

Malofiy argued that the sheet music was transcribed by a third party and Led Zeppelin didn't read it. Rather, Zeppelin guitarist Jimmy Page had access to "Taurus" from watching Wolfe's shows in the psychedelic rock group Spirit and from owning five of that band's records. That created "an Orwellian world" at trial where the parties were "comparing something that Randy didn't write and that Jimmy Page didn't read," Malofiy said. The result was a verdict that "promotes form over substance," Malofiy insisted. (The en banc court turned down attorney Malofiy's request to play portions of "Taurus" and "Stairway to Heaven" on his cellphone for the judges during the oral arguments.)

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