The March 9, 2020 decision of the eleven Justices of the en banc panel of the Ninth Circuit Court of Appeals in Skidmore v. Led Zeppelin is not all bad for creators.
Plaintiff Michael Skidmore, the Trustee of the Estate of deceased songwriter, Randy Wolfe, a member of the rock band Spirit, sued Led Zeppelin in 2014, claiming the iconic song Stairway to Heaven infringed upon Spirit's song Taurus. Not only had members of Led Zeppelin seen Spirit perform multiple times but Led Zeppelin had actually opened for Spirit on at least one occasion. Skidmore claimed that the opening notes of Stairway to Heaven were substantially similar to the eight-measure passage at the beginning of Taurus.
In April 2016, after a five (5) day jury trial, the jury decided in favor of Led Zeppelin. Curiously enough, even though the similarity between the works is readily perceptible to the average listener, the trial court never allowed the jury to actually hear the song Taurus.
Skidmore appealed on, among other grounds, the fact that the jury was not properly instructed on the “inverse ratio rule” and the “selection and arrangement test.” The former rule has existed in the Ninth Circuit for decades and provides that there is an “inverse ratio” between the two elements of copyright infringement, i.e., access and substantial similarity. The more there is of one, the less that is required of the other (e.g., if it is undisputed that the defendant reviewed plaintiff's work, the burden to show that the two works are “substantially similar” is reduced). The “selection and arrangement” test is a doctrine whereby copyright protection is granted to the way an author selects and arranges elements, whether “protectable” or “unprotectable,” and a defendant may be deemed to have infringed plaintiff's work if he copies plaintiff's selection and arrangement of protectable and unprotectable elements.
The March 9th opinion of the majority of the Justices appears to apply both the “selection and arrangement” test and the “filtration” test. However, the latter test filters out unprotectable elements from the analysis. These two tests are fundamentally incompatible since one test (selection and arrangement) includes unprotectable elements in the analysis while the other (filtration) excludes them, ab initio. Under United States Supreme Court precedent, the selection and arrangement test is the only test that should be applied. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 348 (1991). What happens if a plaintiff meets one test but not the other? The extreme incompatibility between these tests must be rectified if there is going to be any clarity in copyright law.
The dissenting opinion of Justice Ikuta, with Justice Bea joining, is the most intellectually cogent, in this author's opinion. This sentiment is shared by Plaintiff's counsel, Francis Malofiy, who stated that “Judge Ikuta's dissenting opinion gives me and the creatives that glimmer of hope to keep on fighting.”
Nevertheless, while the majority of Justices appear to bend over backwards to rule in favor of Led Zeppelin, the majority opinion does, in fact reaffirm the “selection and arrangement” test as the proper test for substantial similarity and, more importantly, in footnote 13, specifically disavows any requirement of a higher degree of similarity to apply it. That is good news for creators. Unfortunately, the Plaintiff lost, even though the similarity was much more pronounced than in Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018) (the “Blurred Lines” case.)
Also bad for creators, the Court abolished the inverse ratio rule in the Ninth Circuit, joining the Second, Fifth, Seventh, and Eleventh Circuits which had previously done so.
All is not lost. Skidmore lost the battle with the Ninth Circuit in a large part because the majority found (incorrectly) that Skidmore failed to advocate for the application of the “selection and arrangement” test during and after trial. By failing to instruct the jury on this test, the dissenting Justices found that this failure “cut the heart out of Skidmore's case” and constituted plain error.
According to Francis Malofiy, “the en banc panel decision is contrary to the law and enforces incoherent and imaginary technicalities instead of allowing the songs at issue to be compared on the merits.” It is, of course an anomaly that the jury never even heard the song Taurus. However, that is because the 1909 Copyright Act controlled the Court's analysis. In this case, the copyright at issue was for the musical composition that was registered in 1967; thus, only the deposit copy of the sheet music was given to the jury.
This battle is not finished yet. In the words of Malofiy, “the next step will be to file for reconsideration and for super en banc review (the entire bench of the Ninth Circuit: 29 Judges). If necessary, we will go to the Supreme Court. This is an important legal battle because songwriters' rights are at risk.” The California Society of Entertainment Lawyers (“CSEL”), an artists' rights organization of attorneys co-founded and chaired by this author, has been asked to, and will, file an amicus brief on behalf of Appellant, who did not, in this author's opinion, get a fair shake.
The case is Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, No. 16-56057, 2020 WL 1128808 (9th Cir. Mar. 9, 2020).
Counsel for Plaintiff-Appellant: Francis Malofiy (argued) and Alfred Joseph Fluehr, Francis Alexander LLC, Media, Pennsylvania.
Counsel for Defendants-Appellees: Peter J. Anderson (argued), Law Offices of Peter J. Anderson, Los Angeles, California; Helene M. Freeman, Phillips Nizer LLP, New York, New York.