Led Zeppelin will be heading back to court for more Stairway to Heaven litigation! Rumor has it paid provocateurs dressed as 70s stoners have begun massing near elevators yelling How Many More Times? at unsuspecting judges. Undeterred, a federal appeals court ruled that a 2016 trial that found in favor of Zeppelin contained inappropriate jury instructions and also erred as it didn’t allow for the “stolen” song, Taurus, to be played during the proceedings. Michael Skidmore, who represents the estate of Taurus writer Randy California, is goin’ all YOUR TIME IS GONNA COME!:
“Skidmore argued that not playing the original Spirit recording worked in Zeppelin’s favour. He said that the jury should have been able to monitor Page’s demeanour while listening to the song that he allegedly ‘stole.'”
Attorney Francis Malofiy will once again be representing Skidmore and the estate and he’s a guy who doesn’t know the meaning of limits! He had his license suspended because of his courtroom antics during a previous trial involving Usher! He incurred more than a hundred sustained objections and multiple GTFOs from Judge R. Gary Klausner in the first Led Zeppelin trial! Who knows what he has up his sleeve this time? Guys who like loud, red ties are unpredictable!
Led Zeppelin has the obvious advantage in this fight. They’re wealthy, they have an army of high-powered lawyers, they have their stellar musical reputation and they have a legion of dedicated fans who are ready to go to war to support their favorite band. But how much will all of that help them in another trial is hard to call. They won’t enjoy some of the advantages that won the case for them the first time around. As we all know, with the legal landscape mood of the United States where it is now, anything is possible!
The Guitar Cave is trying to maintain neutrality because I totally believe in the jury trial system. As a matter of fact I’ve been in the jury system a few times myself. A few years ago I was juror #7 in a criminal trial and found the experience to be deeply moving, interesting, and engaging. I felt like a REAL AMERICAN when it was over! Naturally, in order to successfully mediate a disagreement between two parties in a civil trial, it is necessary to be completely unbiased and have as much information as possible. It would be easy for me to say, “I’ve been listening to Led Zeppelin since the 70s and they have given me many moments of rocking great pleasure, so screw all of these people trying to get money or credit out of the band.” But I’m not gonna do that because that would be presumptuous and not respectful of our judicial system. And…as you will see, this is shaping up to be a GREAT STORY! and who doesn’t love one of those?
There is much at stake: a 2008 deal between Plant, Page and Warner/Chappell Music gives the songwriters $60 million over 10 years for the company’s right to use “Stairway” and other songs from the band’s catalog. All of that cash and the legacy of one of the most famous rock songs of all time is nothing to sneeze at obviously. Prior to the first trial I had already mused on some possible outcomes and I was actually pretty close…not that the case was that hard to call. At least that is what I thought then. Some wildcards have entered the picture y’all! I said at the time, (2014) I thought the idea that the A-minor intro that is the basis for Stairway to Heaven/Taurus was not unique in music history because I was pretty sure something close had to have existed previously. I cited the great 18th century classical guitarist Fernando Sor as an off-the-cuff example. That was basically Led Zeppelin’s claim as well and without having to supply an accurate exact copy of that guitar part, the jury gave them the victory. But Malofiy successfully argued these issues with the first trial and that is why he is getting another crack! A new and better trial! So I think we need to take a look at this guy because that’s a pretty impressive thing he just did. I did some internet sleuthing and a picture emerges of the archetypal “scrappy underdog”. Consider that Malofiy
What a pair of balls! This is a guy who’ll do anything! He filed for trial setting in Philadelphia because Zeppelin played the Live Aid concert in 1985! LOL! He’s a musician who played gigs and got in a fight and KAPOWED! the other party and took the stand in his own defense to stay out of prison. And won! He used the Zeppelin font on his petition for a new trial! LOL! You can see it here. I think, given what we have learned from this very basic research, we can ascertain that Malofiy is a rock and roll, 2000s version of this guy:
WeWe wewe WeweWeweWewewewe (That’s the first couple bars of the Rockford Files Theme. Anyhow…Dude…I am sold. Seriously! This is gonna be a battle for the ages! Remember when Rockford would, like, print up a business card in his car and then go into some office and lie through his teeth about everything and then get in a fight, kick somebody’s ass and the go downtown and yell at Sgt. Becker? That’s totally what this guy does too, except when he prints out business cards he uses this font and they look like album covers. This case will pit newRockford against Jimmy Page, a guy who has been a bonafide wizard since the 1970s, or maybe even the 1400s! I. Don’t. Know. I’m literally shaking with excitement right now. Jimmy might turn newRockford and all of his friends into newts! Or maybe they have anti-newt repellent. They’d better get it if they don’t, I’m just sayin’! Hopefully, newRockford has a cast of friends besides lowrider-driving guy, you know, maybe some neo-pagan witches, or an Angel Martin or Beth Davenport type who owns or works at one of those stores where you can buy crystals and other paraphernalia to keep bad spells and hexes and junk at bay. He better wear garlic necklaces every day of the trial ’cause Zeppelin won’t be screwing around this time! Stairway to Heaven was voted the most popular song on the radio for 30 years running or something. I’m sure it has imbued Jimmy and the rest of Led Zeppelin with all kind of cosmic power, not to mention millions and millions of dollars, which, of course can also make one cosmically powerful.
As I related, I have some legal background myself and I watched Malofiy argue for the appeal in this video. You can watch or you can read this article in Techdirt that covers pretty much the same ground. There some issues at stake for the copyright folks and that topic comprises about the first 15 minutes of the video. A ruling from the early 1900s prevented the actual recording of Taurus from being played in the courtroom to the first jury. From what I think I understand, some musicians interpreted the sheet music and played what was there because it was the sheet music, not the recorded performance, that had the copyright. Malofiy, legal scholar that he is, convinced the appeal judges to let both recordings be played at this new trial in a comparison test, and for me, Jimmy Page’s reaction isn’t what is important. I thought that this comparison of both performances had already happened when the first jury had found in favor of Zeppelin.
The second step and I think I understand this also…I think I do. I’ve read; I’ve digested; I’ve mulled this over for a day or two now. Any musical piece will be made up of elements that “are” and “aren’t” covered by a copyright. The melody of a song is, the chord progression (usually) is not. There could be items like clusters of 3-4 notes that may or may not be, depending on how important or how original they are to the piece of music. Malofiy claims in his rebuttal argument that:
“…we were able to show 5 distinct elements: minor chromatic line and associated chords, duration of pitches in minor chromatic line, melody placed over descending chromatic line, rhythm of steady eight-note beats and a pitch collection. These 5 very distinct elements were never used in any prior art and defendants were not able to show that in any way, shape or form that these 5 elements…
I can’t exactly make out what he is saying at the end because he is rushing as he runs out of time, but if this whole thing about the five elements is true, then I WAS WRONG! About the Fernando Sor thing…but if it was checked obviously and if these 5 elements can be argued to be covered by copyright. That first element — the line with the chords thing? I’m not sure that everyone agrees something like that is necessarily covered by copyright, but this is part of the brilliant Malofiy strategy! Ironside would totally be jealous! He will first try to get people who know absolutely nothing about music on the jury, play both songs, and point to these 5 elements that people can “hear” in both songs. He will claim they are covered by copyright and if Zeppelin can’t counter with something that also has these 5 elements, or argue successfully that they shouldn’t be covered in copyright, Malofiy and the Estate will emerge victorious! Or…prior to a trial, Led Zeppelin will behold the awesomeness of this strategy, quietly settle out of court and give Randy California a writing credit. Or…I’m completely wrong about the whole “Rockford” angle and Malofiy is actually…New Vinnie! WHOA! Can you imagine? With a hot babe girlfriend who knows everything there is to know about pitch clusters and line clichés? If I was the Led Zeppelin legal team I would look through that Fernando Sor catalog…and watch My Cousin Vinnie a few times. If Malofiy shows up in a red tux, it’s all ova, you guys!
So this is shaping up to be a Battle of Evermore! I’m on the edge of my seat! I wish they would they televise it. Both parties think they’ll win! *Developing*