According to Law360, the estate of Randy “California” Wolfe has filed a petition for a writ of certiorari asking the U.S. Supreme Court to overturn a March 2020 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco upholding the 2016 trial verdict that found LED ZEPPELIN‘s classic song “Stairway To Heaven” was not a rip-off of SPIRIT‘s “Taurus”.
Michael Skidmore, the trustee of “Taurus” songwriter Wolfe‘s estate, had brought the claims more than four decades after “Stairway To Heaven” appeared on LED ZEPPELIN‘s untitled album, better known as “Led Zeppelin IV”.
In June 2016, a Los Angeles jury deliberated for about five hours before deciding unanimously in favor of LED ZEPPELIN. However, a three-judge panel of the Ninth Circuit Court of Appeals decided in 2018 the trial judge had made a series of errors and ordered a new hearing. Five months ago, the Ninth Circuit Court of Appeals in San Francisco upheld the 2016 trial verdict.
In a typical year, lawyers file 7,000 to 8,000 petitions for a writ of certiorari, the formal name for a petition asking the Supreme Court to give full review to a lower court’s order. According to Vox, the Court typically grants fewer than 80 of these “cert” petitions.
The Wolfe estate argues in the petition for certiorari, filed on Tuesday (August 11): “The [Ninth Circuit] opinion is a disaster for the creatives whose talent is often preyed upon. By the same token, it is a gift to the music industry and its attorneys — enthusiastically received — by a circuit whose own judge once observed: ‘Our circuit is the most hostile to copyright owners of all the circuits.’
“The ‘court of appeals for the Hollywood Circuit’ has finally given Hollywood exactly what it has always wanted: a copyright test which it cannot lose. Portending what is to come, in the days following the decision’s filing multiple major copyright rulings have already dramatically favoured industry defendants. The proverbial canary in the coal mine has died; it remains to be seen if the miners have noticed.”
Four years ago, LED ZEPPELIN singer Robert Plant testified in court that he had no recollection of ever hearing “Taurus” before. “I didn’t remember it then, and I don’t remember it now,” he said. LED ZEPPELIN guitarist Jimmy Page also testified that he had not copied any part of “Taurus” even though he owned five discs by SPIRIT among his collection of 4,000 vinyl records.
Enrico Bonadio, a senior lecturer in law from City University London, told Newsweek in April 2016: “I don’t think that it is appropriate to consider the act of devising a tune that simply has the same ‘feel’ and ‘groove’ as another as copyright infringement. This is how music creativity often works. Musicians frequently build upon earlier arrangements and styles, and so the increasing occurrence of cases such as these should give us pause.”
After the 2016 trial, plaintiff’s attorney Francis Malofiy claimed he lost his case on a technicality, insisting that it was unfair the jury was unable to listen to the sound recording of “Taurus” and instead was limited to hearing an expert performance of the registered sheet music.
Malofiy received over a hundred sustained objections and “multiple admonishments” during the ZEPPELIN trial, with the band’s publishing company Warner/Chappell Music filing documents asking the judge to order the plaintiffs to pay over $613,000 in costs for defending against the lawsuit.
