The attorney who claims that Led Zeppelin ripped off the acoustic guitar opening in “Stairway to Heaven” faced tough questioning on Monday before an 11-judge panel of the 9th Circuit Court of Appeals.
Francis Malofiy argued the case on behalf Michael Skidmore, a journalist who represents the estate of the late Spirit frontman Randy Wolfe. Skidmore sued Zeppelin in 2014, alleging that the opening of “Stairway” borrowed its descending melody from Spirit’s 1968 track “Taurus.”
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A jury ruled against the estate in 2016, and Malofiy is now seeking to overturn the verdict and get a new trial. The case has been closely watched in the music industry, which has been rocked by big awards in the “Blurred Lines” and “Dark Horse” cases.
A three-judge panel of the 9th Circuit Court of Appeals sided with the plaintiff in September 2018, vacating the jury verdict, and finding that Judge Gary Klausner had erred by giving the wrong jury instructions.
Led Zeppelin’s attorneys sought a rehearing before an en banc panel of the 9th Circuit, which agreed to take a fresh look at the case. The arguments on Monday went on for a little more than an hour. The judges grilled Malofiy, and seemed generally inclined to reinstate the jury verdict.
Early in the argument, Judge Andrew Hurwitz asked whether Malofiy contends that Spirit can claim a copyright in the album version of “Taurus,” rather than the deposit copy that was registered with the U.S. Copyright Office. Sound recordings did not become protected under copyright until 1972.
“It’s not the sound recording, it’s the composition embodied in the south recording,” Malofiy argued, to a skeptical audience.
Malofiy also claimed that the deposit copy was flawed, and conceded that it would be hard to find infringement from that version of the composition. Several judges seemed inclined to dispose of the plaintiff’s case on those grounds.
“He basically conceded the whole case right there,” said Devlin Hartline, an assistant professor at the Antonin Scalia Law School at George Mason University. “They’re going to nail him on the deposit copy.”
Lee Gesmer, senior counsel at Gesmer Updegrove LLP in Boston, also said that Malofiy’s admission was “critical,” and that the judges would likely rule against him on the issue.
“If you had to make a prediction, that’s the way it’s going to come out,” Gesmer said. “If that’s true — copyright is limited to the deposit copy — end of case.”
The three-judge panel had faulted Klausner for not giving the jury an instruction that infringement could be found based on the “selection and arrangement” of otherwise unprotectable elements. But the judges on the larger panel questioned whether Malofiy had even raised that argument at trial.
The Department of Justice weighed in on Led Zeppelin’s behalf in an amicus brief last month.
A ruling may not be issued for several months, and the case could be appealed to the Supreme Court.