The Ninth Circuit Court of Appeals in San Francisco on Monday put to rest a closely watched case that began in 2016 when a Los Angeles federal jury decided the British rock group didn’t steal parts of the 1971 hit from an obscure single, “Taurus,” by the band Spirit. The Ninth Circuit overturned that ruling in 2018, saying the judge made errors in the original case.
The case was reheard en banc—meaning 11 appellate judges heard the case versus the typical panel of three—in September, with music lawyers anticipating the decision would set a precedent in an area of copyright law that has become increasingly contentious since the 2015 trial over the song “Blurred Lines.”
In that case, the scope of copyright infringement was extended beyond melody and lyrics to include elements contributing to the sound and feel of the music. In 2016, the Ninth Circuit affirmed the district court’s finding, and singer-songwriters Robin Thicke and Pharrell Williams were ordered to pay $5.3 million for copying the 1977 Marvin Gaye hit “Got to Give It Up.”
Music lawyers point to that decision as the impetus for a slew of recent copyright cases, including one last year in which Katy Perry and collaborators of her 2013 hit “Dark Horse” were ordered to pay $2.8 million in damages for infringing on an 11-year-old Christian rap song.
“Plaintiffs lawyers have started to say, ‘Let’s roll the dice’ if there’s a song that makes a ton of money, and juries have been siding with the plaintiffs,” said music-trial litigator Ed McPherson, a copyright specialist who filed an amicus brief in support of Led Zeppelin. “I think it will put a pin in the floodgates that really started opening with ‘Blurred Lines.’”
On Monday, Mr. McPherson and others applauded the Ninth Circuit’s overturning of the “inverse-ratio rule.”
In copyright cases, juries must determine whether the defendant could have accessed the alleged infringed song and whether the songs are substantially similar. The inverse-ratio rule held that the more access a plaintiff could show, the less similarity was required to establish infringement. With the rise of music streaming on services like YouTube and Spotify, the concept of access is “increasingly diluted in our digitally interconnected world,” the court said in its overturning of the rule.
Additionally, the court said copyright protection is limited to the deposit copy, or what is registered with the U.S. Copyright Office. That means if only sheet music is contained in the deposit copy—as is the case with most older songs, including “Stairway to Heaven”—the jury cannot hear a sound recording to consider how the song was performed.
“The value of a copyright case if a song is from the 60s or 70s probably just went down,” said Christopher Buccafusco, a professor at Cardozo Law School in New York who also filed an amicus brief.
The court’s decision also limits the scope of copyright protection, saying that in cases where plaintiffs are claiming infringement on common musical themes or elements, the copyright is thin and they must prove the alleged copied work is virtually identical.
“That makes it much harder to bring cases about tiny chunks of songs. Those cases will be much harder to win now,” Mr. Buccafusco said. “My guess is the amount of money crossing the table will be diminished.”