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Led Zeppelin Ruling Overturns Ninth Circuit’s ‘Inverse Ratio Rule’

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By Shalayne L. Pillar and David G. Barker

On March 9, 2020, Led Zeppelin won a major copyright battle over claims that they stole part of their signature song “Stairway to Heaven.”  The Ninth Circuit Court of Appeals, ruling en banc, upheld a 2016 jury verdict that cleared the band of infringing a 1967 instrumental ballad titled “Taurus” by the band Spirit.  The ruling overturned a 2018 decision by a panel of three Ninth Circuit judges that held the trial judge failed to inform jurors that unprotectable elements could be protected by copyright law when arranged in creative ways (see discussion here).

Unless appealed to the U.S. Supreme Court, the ruling will end more than five years of litigation—a fact noted by the court.  “The trial and appeal process has been a long climb up the ‘Stairway to Heaven,’” U.S. Circuit Judge M. Margaret McKeown wrote Monday.  “The parties and their counsel have acquitted themselves well in presenting complicated questions of copyright law.  We affirm the judgment that Led Zeppelin’s ‘Stairway to Heaven’ did not infringe Spirit’s ‘Taurus.’”

The ruling is notable in at least two respects.  First, the court rejected the argument that jurors should have been allowed to consider a recorded version of “Taurus” during the trial.  Agreeing with the district court, the Ninth Circuit held that the song’s copyright extended only to its sheet music—not the song as recorded.  This is because Spirit’s song, registered in 1967, is protected under the 1909 Copyright Act, which does not cover sound recordings (that protection was not available until the Copyright Act of 1976).

Perhaps more notable was that the court overturned its own precedent regarding the copyright concept known as the “inverse ratio rule.”  The inverse ratio rule applied if one party could prove that the infringing party had a high degree of access to a plaintiff’s work; if so, a lower standard of proof was used to determine whether the works were similar.  The rule was often the subject of controversy within the Ninth Circuit.  For example, in July 11, 2018, the court amended a prior ruling to remove all mention of the inverse ratio rule, while still affirming a district court’s award of damages for copyright infringement related to Pharrell and Robin Thicke’s song “Blurred Lines.”

This time, however, the court firmly rejected the rule, stating:  “We take the opportunity to reject the inverse ratio rule, under which we have permitted a lower standard of proof of substantial similarity where there is a high degree of access . . . This formulation is at odds with the copyright statute and we overrule our cases to the contrary.”