The journey to final judgment has gotten decidedly longer for the rock group Led Zeppelin (LZ). On Sept. 28, 2018, the U.S. Court of Appeals for the Ninth Circuit vacated the district court judgment dismissing a claim of infringement against the iconic LZ hit “Stairway to Heaven” (“Stairway”), following a jury verdict in LZ’s favor based on the jury’s finding that the similarities between the songs did not concern copyrightable material. Skidmore for Randy Craig Wolfe Tr. v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018) (Skidmore). Although numerous issues were presented on appeal, the reversal was based on the Ninth Circuit’s view that the case should be re-tried using jury instructions that adequately conveyed the basic principle of copyright law that an original selection, coordination or arrangement of non-copyrightable elements could be protectable even though each separate element alone could not.

The copyrightability issue centered on a chromatically descending bass line in both songs—a musical device that all parties and experts agreed was not itself copyrightable. Nevertheless, the Ninth Circuit found error in the district court’s failure to make clear in its jury instructions that the relatively low level of originality required for copyright protection could potentially be found in original selection, coordination or arrangement of the descending bass line along with other elements of plaintiff’s song. As a result, in a case commenced in May 2014 and tried in July 2016, the parties must now prepare for a second trial in 2019, and perhaps a return thereafter to the Ninth Circuit. Jarndyce v. Jarndyce rides again.

Background