Say what you will about Bill Barr’s Department of Justice, but apparently a few G-Men are Zeppelin fans. The Department of Justice filed an amicus brief in support of Led Zeppelin, which is accused of copyright infringement by the band Spirit.
Allegedly, Zeppelin copied portions of the song “Taurus” in their song “Stairway to Heaven.” We’ve covered the case previously, but the DOJ brief advances two main arguments: that the scope of copyright when “Taurus” was registered couldn’t be applied to “Stairway to Heaven,” and that the infringing portion in question is part of a basic musical form that likely would be ineligible for copyright absent near-verbatim copying. The brief states:
The United States is participating in this case to address two issues: (1) whether the scope of the copyright for unpublished musical works registered before 1978 is defined by the complete copy of the work deposited with the Copyright Office; and (2) whether basic musical elements, such as a chord or chromatic scale, may ever be copyrightable, and whether the selection and arrangement of a small number of such elements can be entitled to only “thin” copyright protection, meaning that the copyright is infringed only by virtually identical copying. In the view of the United States, the panel correctly resolved the first issue, concluding that the copy of the work deposited with the Copyright Office defines the scope of the copyright. But on the second issue, the Court should affirm the district court’s judgment in favor of defendants, because the relevant portion of the work is entitled, at most, to a thin copyright, and the allegedly infringing work is not virtually identical.
Argument (1) is somewhat complicated and deals with the Copyright Act of 1909 (the copyright system in effect when Taurus was registered). To state it simply, under the Copyright Act of 1909, one had to deposit a complete copy of any unpublished work to receive copyright protection — and prior to 1978, the release of sound recordings did not qualify as publication of the underlying music. In the case at issue, the sheet music was deposited with the Copyright Office. Accordingly, the sheet music alone is what determines the scope of the copyright.
Argument (2) deals with how original the portion in question is. Sometimes words have two meanings, and simple musical forms, such as the “repeated A-minor descending chromatic bass line structure” in both “Taurus” and “Stairway to Heaven,” are examples of a component of a copyrighted work that is otherwise uncopyrightable. A similar rule also exists in choreography: while an entire routine can be copyrighted, individual steps cannot. At best such components should be entitled to only “thin” copyright, protected against only the most blatant form of copying — which “Stairway to Heaven” clearly isn’t.
Hopefully the DOJ’s brief will help Zeppelin prevail in a triumph for free expression and follow-on creativity.
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