Skidmore Seeks a Second Chance at SCOTUS in Led Zeppelin Copyright Case

“Skidmore’s petition says that the 123 songwriters who submitted the brief were ‘some of the wealthiest musicians, music executives, and attorneys on the planet’ who did not have the ‘foundational principles of copyright law in mind.’” October 30, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, filed a petition for rehearing of the denial of its August 6 petition for writ of certiorari to the Supreme Court. In the original petition, Skidmore requested that the Supreme Court review a March judgment of the U.S. Court of Appeals for the Ninth Circuit siding with Led Zeppelin in a long-running case examining whether the opening notes of the band’s legendary song “Stairway to Heaven” infringed the song “Taurus,” written by Robert Wolfe of the band Spirit, a contemporary of Led Zeppelin. Skidmore brought the original suit in 2014. In the petition for rehearing, Skidmore claims that the “Ninth Circuit’s en banc opinion herald[ed] the ‘death of music copyright,’ just as happened to literary copyright before it.”

Stairway to SCOTUS

In September 2018, a three-judge panel of the Ninth Circuit vacated-in-part the judgment of the U.S. District Court for the Central District of California that Led Zeppelin’s “Stairway to Heaven” was not substantially similar to Spirit’s “Taurus”. The case was remanded back to the district court after the Ninth Circuit found that certain instructions given by the district court to the jury were erroneous and prejudicial. The Ninth Circuit agreed to rehear the case en banc, which resulted in the March 9 decision, wherein the Ninth Circuit notably struck down its own “inverse ratio rule,” which dictated that there is “a lower standard of proof of substantial similarity when a high degree of access is shown.” The Ninth Circuit noted that the inverse ratio rule “improperly dictate[ed] how the jury should reach its decision” and that the “[t]he burden of proof in a civil case is preponderance of the evidence.” Thus, as a result of the Ninth Circuit’s decision to abrogate the inverse ratio rule, it concluded that the district court did not err in failing to include a jury instruction articulating the rule.

In addition, the Ninth Circuit concluded that the 1909 Copyright Act limited the scope of copyright protection to deposit copies and stated that “[b]ecause the deposit copy define[d] the four corners of the Taurus copyright, it was not error for the district court to decline Skidmore’s request to play the sound recordings of the Taurus performance that contain[ed] further embellishments or to admit the recordings on the issue of substantial similarity.”

On August 6, Skidmore filed a petition for a writ of certiorari asking the Supreme Court to “resolve two issues of first impression: (1) whether a deposit lead sheet defines a copyright under the 1909 Copyright Act, and (2) whether the Ninth Circuit’s evisceration of the substantial similarity extrinsic test should be reversed.” On October 5th, the Supreme Court denied the petition.

Petition for Rehearing

In the October 30 petition for rehearing, Skidmore asserts that the “Ninth Circuit’s holding that the deposit copy controlled the scope of a copyright was a first in 106 years and will divest hundreds of thousands of songs of copyright protection under the 1909 Act” and that the “holding regarding the extrinsic test— fundamentally altering its nature—applies to all copyright cases under both the 1909 Act and the 1976 Act.” Thus, Skidmore is urging the Supreme Court to review the Ninth Circuit’s en banc holding immediately.

Skidmore also asserts that the Ninth Circuit’s opinion overstepped by “purporting to redefine what ‘originality’ is” because “[o]riginality is a constitutional requirement which can only be changed through constitutional amendment or by [the Supreme Court]. The petition explains that the Supreme Court has specifically held that “originality only requires a modicum of creativity,” and that a work need not be novel, but the Ninth Circuit “raised the bar significantly, instead holding that for a work to be original it has to be novel.” Skidmore further argues that the Ninth Circuit’s “redefinition of originality [combined with its] concomitant holding limiting the application of selection and arrangement… essentially means that artists who have their musical compositions stolen no longer can claim protection in their work.”

Reasons for Rehearing

Skidmore asserts that the Ninth Circuit used a “shady rehearing process” to issue the en banc opinion on a “multitude of unrelated issues that the court wanted to rule on.” According to the petition, new information has come to light that the Ninth Circuit’s process was influenced by an amicus brief that was submitted on behalf of “123 Songwriters, Composers, Musicians, and Producers.” According to Skidmore, “[g]reat pains were taken by the amici to (falsely) portray themselves as unaffiliated artists who were friends of the court and dedicated to getting the law right;” however, the “purpose and effect of these amicus briefs was to push the narrative to the en banc court that both songwriters and the industry agreed that copyright law needed to be changed.”

Skidmore also notes that the Ninth Circuit adopted the songwriter’s brief in many respects and that the Ninth Circuit even admitted that it relied on the brief in its opinion. The petition says that the 123 songwriters who submitted the brief were “some of the wealthiest musicians, music executives, and attorneys on the planet” who did not have the “foundational principles of copyright law in mind.” The petition for rehearing includes a list of the “alleged ‘songwriters’ with their publicly available net worth and titles to illustrate just who the law was changed for.” Skidmore also asserts that some of the listed songwriters and industry executives, including Max Martin, who was a defendant in the Katy Perry case, were interested parties who would benefit directly from the en banc opinion.

The petition also points out that an additional case, Smith v. Weeknd, which is now being appealed, was not previously raised by Skidmore. The petition explains that the Central District of California court granted summary judgment for the defendants and cited to the Skidmore decision in stating that “once the prior art is filtered out” the plaintiffs’ song contained no protectable expression similar to the defendants’ song. Skidmore notes that the court in Smith also held that the plaintiffs “cannot establish substantial similarity by reconstituting the copyrighted work as a combination of unprotectable elements and then claiming that those same elements also appear in the defendant’s work.” The Smith court essentially held that “(1) elements that appear in the prior art are no longer protectable, and (2) those unprotectable elements can no longer be protected in a selection and arrangement.” Skidmore’s petition for rehearing ultimately urges the High Court to grant rehearing and to grant the original petition for a writ of certiorari.

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