Editorial: Climbing a ‘Stairway’ to the courthouse

Forty-five years after Led Zeppelin released what may be the world’s most recognizable rock song, a federal court jury is considering whether “Stairway to Heaven” songwriters Jimmy Page and Robert Plant stole one of its musical phrases from an obscure instrumental by the somewhat less legendary California rock band Spirit.

That the estate of late Spirit songwriter Randy California (né Wolfe) could pursue a copyright infringement lawsuit so long after “Stairway” became a staple on rock radio is one of the odd features of copyright law. As the Supreme Court had held in 2014, 12 days before the Wolfe estate filed suit, Congress allowed copyright holders to recover damages for up to three years after any unauthorized copy is made or sold — not just the first copy. No matter that the passage of time makes it harder to defend against an infringement claim, as faded memories and discarded documents make it difficult to re-create the process by which a disputed work was created.

The bigger issue here, though, is similar to the one posed by the successful lawsuit brought by Marvin Gaye’s estate against Robin Thicke for his song “Blurred Lines”: How do you draw the line between inspiration and infringement? In the “Blurred Lines” case, the song’s rhythmic bounce strongly evoked Gaye’s “Got To Give It Up”; in the current case, the familiar acoustic-guitar figure Page played on “Stairway” has the same Renaissance Faire sound as the main acoustic guitar part in Spirit’s “Taurus.”

Expert witnesses will help the court determine whether those eight bars are close enough technically to constitute copying. Ultimately, however, it will be up to jurors to decide whether Page and Plant actually borrowed from Wolfe’s song. To do so, they’ll have to find that the two British rockers had access to “Taurus” before writing “Stairway” — the bands toured together in the late 1960s, before “Stairway” was released, although Page testified he didn’t hear “Taurus” until he was sued — and that the two works are “substantially similar.” The greater the access, the less striking the similarities have to be in order to constitute infringement.

There are, in fact, a number of points in common between the disputed segments of the two compositions. Specifically, they both are largely in A minor, cover eight measures, have a descending bass line and have much the same rhythmic pattern. You can’t help but notice how much alike those phrases sound.

On the other hand, it’s easy to find similarities between rock songs, as in many genres of popular music, because so many of them rely on the same handful of chords and scales. Innumerable songs are built around an A-minor chord with a descending bass line — “Angie” by the Rolling Stones and “Something” by the Beatles are just two of the most prominent. Songwriters also tend to be avid consumers of music, and they’re influenced by the musicians and producers with whom they work, two sources of constant cross-pollination. This sort of sharing or mashing together of different generations, cultures and musical talents is a good thing because it helps promote creativity and innovation — just as copyright law seeks to do.

Innovation isn’t the only result, however. Led Zeppelin has been forced several times to acknowledge that it borrowed heavily from other musicians, including American bluesmen Willie Dixon and Howlin’ Wolf; on at least five occasions, it added other songwriters’ names to the credits when its works were reissued. Still, there are clear differences between the musical phrases at issue in the latest lawsuit, and sometimes even a small change in a chord pattern or arrangement can separate a song that connects with listeners from one that doesn’t.

Copyright law doesn’t care how well a song sells (even though plaintiffs clearly do; no one accuses a failed songwriter of plagiarism). The question for the jurors in the “Stairway” case is whether the disputed phrases are so similar that Page and Plant must have copied from Wolfe. Their decision could give artists a bit more guidance on what constitutes originality in a field where so much is shared, borrowed, mashed together and reinvented.

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