GRACE NOTES

On May 10, 2016, a jury will begin a trial to decide if Led Zeppelin members Robert Plant and Jimmy Page copied parts of the song “Taurus” by the band Spirit for their mega-hit “Stairway to Heaven.” A ruling last week by a U.S. District Judge determined that the case should move forward, stating the following: “While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure. Enough similar protectable expression is here that the issue of substantial similarity should [be heard by a jury].”

The instrumental song “Taurus” was recorded in 1967 and written by Spirit’s lead guitarist Randy Wolfe who was given the nickname Randy California by Jimi Hendrix. Both songs, “Taurus” and “Stairway to Heaven” which was written in 1970, are in the key of A minor, feature a descending bass line and similar guitar arpeggios and very similar chord progression and a classical, Renaissance style.

While Spirit wasn’t a huge band in those days, their song “I Got a Line on You” reached number 25 on the US Billboard charts. In an interview back in 1991, as indicated in the current court documents, Randy Wolfe stated “Led Zeppelin members used to come up and sit in the front row of all [Spirit’s] shows and became friends[,] and if they wanted to use [Taurus], that’s fine.” Later in the interview, Wolfe reiterated, “I’ll let [Led Zeppelin] have the beginning of Taurus for their song without a lawsuit.” Wolfe died tragically in 1997 in a drowning accident while saving his son from a riptide in Hawaii. The copyright lawsuit is being pursued by his estate.

This is going to be a complicated trial, and one with a lot of different facets. Copyright isn’t merely a matter of proving the songs sound the same; there are actually two factors to determine infringement. One part is known as access; if you couldn’t have heard the song in question, you couldn’t have copied it. If Spirit had written the song “Taurus” but never recorded it or performed it, Led Zeppelin would never had access to hearing the song, so there would be no unlawful copying. In this case, however, not only was “Taurus” written years before “Stairway,” the two bands played at least three concerts together and “Taurus” was performed at the shows. In fact, Led Zeppelin’s US debut was as the opening act for Spirit in Denver, 1968, although in the lawsuit, Zeppelin is denying they ever performed at the same concerts, and therefore had no prior access to the song.

The other factor in unlawful copying involves the similarity to the original work. This is a two-part evaluation. Objective similarity usually requires an expert witness to perform a comparison between the two works. In this case, it would look at the key, chord progressions, instrumentation, etc. The subjective similarity is what the judge in this case has determined needs to be heard by a jury - would anyone listening to the two songs think one was copied from the other.

Numerous YouTube videos are popping up with comparisons of the two, but one very important thing needs to be noted. “Taurus” has a very long atmospheric introduction on the studio recording, before the section that is similar to “Stairway to Heaven.” That introduction was never performed live, including the live performances that could have been heard by the members of Led Zeppelin, if in fact, they were at the same concerts.

People will try to point out that there are only 12 notes in an octave, and therefore only so many ways to put them together to create a song. However each note has a number of different chords: major, minor, diminished 7th, etc., and inversions of each. These two songs aren’t just the same notes; they’re the same chords, in the same key, with very similar rhythmic features as well.

This is going to be a fascinating trial, and one we will continue to follow. It falls on the heels of two other big infringement cases. One was Sam Smith’s “Stay with Me” vs. Tom Petty’s “I Won’t Back Down” and the other was Robin Thicke and Pharrell Williams’ “Blurred Lines” vs. Marvin Gaye’s “Got To Give it Up.” In both cases, the newer artists had to pay the original artists or their estates.

The comparisons between "Taurus" and "Stairway to Heaven" were around for years before this lawsuit. While the statute of limitations (normally three years in a copyright infringement case) has expired on the original recording and release of “Stairway to Heaven,” when the band remastered the recording in 2014 and released an alternate version, it reopened the opportunity for litigation. Sometimes, it’s best to leave things the way they were. To quote the song in question, “And if you listen very hard, the tune will come to you at last.” The question is, what tune is that?