Robert Plant (left) and Jimmy Page (right) of Led Zeppelin, in concert in Chicago in 1977.

A copyright case brought against Led Zeppelin will return for an encore after a Ninth Circuit appellate panel called for a retrial, ruling that the district court “prejudicially erred” in its instruction to the jury.

According to the lawsuit, Led Zeppelin’s 1971 anthem “Stairway to Heaven” was a little too similar to “Taurus,” a 1967 instrumental by American rock band Spirit. Lawyer Michael Skidmore filed the suit on behalf of Spirit’s front man Randy Craig Wolfe, also known as Randy California, who died in 1997.

At trial, Led Zeppelin’s Robert Plant and Jimmy Page denied ripping off Spirit’s song, testifying that their song was original and claiming they didn’t recall meeting the band or hearing ”Taurus.”

Read the court opinion:

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In June 2016, a federal court jury in Los Angeles sided with Led Zeppelin in part, finding that the band members had access to “Taurus,” owned by Skidmore, but that the two songs didn’t pass the “extrinsic test” of similarity.

But according to the Ninth Circuit opinion, the lower court did not properly explain “originality” to the jury and failed to explain how combinations of “unprotectable musical elements,” such as note and scale, can sometimes qualify for copyright protection.

The panel also ruled that the court erred in preventing the jury from hearing a recording of “Taurus.”

“We weren’t given a fair fight at the trial court level because there were evidentiary rulings that made it almost impossible to allow the jury to really compare what was at issue,” said Skidmore’s attorney, Francis Malofiy of Francis Alexander in Media.

Peter J. Anderson of the Law Offices of Peter J. Anderson in California, who represented Led Zeppelin, did not immediately respond to a request for comment.

Related story: Page and Plant’s Win in ‘Stairway to Heaven’ Case Seen as Bolstering Songwriters’ Creative Rights

“We got a bad ruling by the judge,” Malofiy said. “It was wrong, it was prejudicial and it should have never happened.”

According to Malofiy, once jury members hear the recording in a retrial, ”they’ll realize that [Page and Plant] had access to the song and were inspired by the song, and it resulted in the part of the first two minutes of ‘Stairway to Heaven,’ which we alleged was copied.”

Judge Richard A. Paez wrote the opinion on behalf of a panel, which included colleague Sandra Ikuta and U.S. District Judge Eric N. Vitaliano of the Eastern District of New York, sitting by designation.

Malofiy said he looks forward to trying the case again, and said that any damages recovered in the case will go to “providing musical instruments to kids that can’t afford them in public schools.”

“There’s no doubt that Led Zeppelin is one of the greatest bands in rock ’n’ roll history,” Malofiy said. “But their legacy is stained by their plagiarism, which is tragic. It doesn’t have to be that way.”


Related story: Suspended ‘Stairway to Heaven’ Lawyer: Judges Had It In for Me