The estate of musician Randy California, of LA rock band Spirit, intends to appeal the jury verdict last month that found that Led Zeppelin did not lift music that formed the basis for the group’s hit Stairway to Heaven from an earlier Spirit instrumental, Taurus, court documents show.
The unanimous verdict, from an eight-member jury following seven days of testimony in US District Court in Los Angeles, concluded that even though Zeppelin songwriters Jimmy Page and Robert Plant may have heard Taurus before they composed Stairway, the songs were not musically similar enough to rise to the level of copyright infringement.
Attorney Francis Malofiy, who represented plaintiff Michael Skidmore in bringing the case to court 45 years after Stairway to Heaven was originally released, said after the verdict was announced that Zeppelin’s team “won on a technicality.”
He was referring to Judge R. Gary Klausner’s ruling that only the original sheet music for Taurus, which was registered with the US Copyright Office in 1968, rather than Spirit’s audio recording of the song, could be admitted during the trial.
The prospect of succeeding with this appeal, filed July 23, “is a huge uphill battle because it went all the way to the jury,” said intellectual property law specialist Larry Iser, partner at Los Angeles-based firm Kinsella Weitzman Iser Kump & Aldisert.
“Based on what was sound musicological evidence, the jury concluded there was no infringement,” he said. “Had the judge taken it away from the jury early, [the plaintiff] might have have had an easier time on appeal.”
Klausner’s decision was consistent with copyright infringement cases involving music recorded before a copyright law revision in 1972 extended federal protection to sound recordings. Before 1972, only sheet music was covered by federal copyright law.
Malofiy’s co-counsel, Glen Kulik, told Los Angeles Times following the verdict that their inability to play the Spirit recording during the trial constituted “an insurmountable obstacle” to their case.
Skidmore charged the Zeppelin had stolen the famous opening of Stairway from a similar-sounding passage about 45 seconds into Taurus, the instrumental from Spirit’s 1968 debut album written by Randy Wolfe, better known by his nickname Randy California. Zeppelin’s team successfully argued that similar sections of the two songs are common musical elements and are not protected under copyright law.
In the aftermath of the jury’s decision, Zeppelin’s music publisher, Warner/Chappell Publishing, which was one of the defendants in the case, requested that Skidmore be required to pay nearly $800,000 (Dh2.9 million) in legal fees and expert witness costs that Zeppelin’s team incurred for its defence of the two Rock and Roll Hall of Fame musicians, record label Rhino Records and the publisher.
Additionally, Malofiy was suspended in June from practicing law for three months over “serious misconduct” in a previous case.
A court panel determined that he violated various rules of conduct in another infringement case he argued involving Usher’s hit Bad Girl, raising the issue of how an appeal might proceed if Skidmore chose to pursue one. Malofiy is still listed as Skidmore’s attorney of record in the appeal motion.
In the course of the seven-day Zeppelin trial, Malofiy raised more than 100 objections that were overruled by Klausner, who admonished him multiple times during the case.
Reached Tuesday by phone, Peter J. Anderson, lead attorney for the Zeppelin legal team, declined to comment on the motion to appeal.
