Can Copyright Get The Led Out?

It turns out that the soundtrack to my high school years might have been chock full of copyright infringement. Led Zeppelin has already settled copyright infringement disputes out of court regarding some of my favorite tunes: The Lemon Song, Whole Lotta Love, Babe I’m Gonna Leave You, and Dazed and Confused. And after all these years, now Led Zeppelin’s Stairway To Heaven is subject to formal allegations of copyright infringement.

2014-06-12_Led-Zeppelin-Copyright_JenSo what’s the story with Stairway to Heaven? In 1969, the British band Spirit opened for Led Zeppelin during their U.S. tour and played a song from their debut album called Taurus during the gig. Now-deceased Spirit guitarist Randy Craig Wolfe (also known as Randy California) long claimed that Led Zeppelin stole the chord progression from Taurus to create Stairway to Heaven, which debuted in 1971. He was quoted in 1997 expressing his disappointment over Zeppelin’s failure to give credit (or share the wealth) from the iconic song. But neither Wolfe, who wrote Taurus, nor Spirit ever brought a formal claim of infringement. Wolfe died in 2012.

Tussles over things like chord progressions and rhythm lines are common in the music business. Courts have even found infringement based on the similarity of as few as three notes. It’s not unusual for these disputes to be settled before a lawsuit is filed, when arrangements such as license agreements and public credit are often sufficient to heal the wounds. A good example is Vanilla Ice’s use of Queen and David Bowie’s Under Pressure. After lots of popular comment about the apparent use of the bassline from Under Pressure in Ice Ice Baby, Queen and Bowie got liner note credit and a financial settlement. Apparently, such a settlement never happened between Spirit and Led Zeppelin. Wolfe’s Trust has now brought suit in Pennsylvania.

All That Glitters Is Half A Billion In Revenue

So why now, 43 years after the song debuted and two years after Wolfe took his own stairway to heaven (sorry, I couldn’t resist), is his trust suing? Well, Led Zeppelin is about to release Jimmy Page’s re-mastered versions of the albums, including Led Zeppelin IV, which includes Stairway to Heaven. Given that estimates of the song’s earnings over the years hover over the half-billion dollar mark, sales of the new version will no doubt add significantly to that already staggering amount.

However, this raises the question: Does copyright law allow this kind of long delayed suit? After the Supreme Court’s recent decision in Petrella v. MGM, the answer appears to be yes.

The Copyright Act contains a three-year statute of limitations, but it does not necessarily begin at the time of the original infringement. Instead some courts have held that it is measured from the discovery of the infringement; other courts have held that the limitations period begins to run from the “last act” of infringement. More importantly, with respect to acts of “continuing infringement” – i.e., every time the song is sold/played – each act of infringement has its own limitation period, making the three-year bar merely a limitation on the damages period, not a bar to bringing suit. To counter this case law, several Circuits have applied the equitable doctrine of laches to bar long-delayed claims, even where the statute of limitations would not. But in Petrella, the Supreme Court held that laches cannot be applied where the underlying statute contains a limitations period.

In this case, Wolfe’s Trust was likely banking on the release of the re-mastered song to serve as the triggering act of infringement and avoid the application of laches. After Petrella, laches is no longer a concern, so this case will Ramble On.

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