In this week’s post, we discuss the “Stairway To Heaven” copyright protection case. 

Music is unique in copyright law because music often requires two separate copyrights – one for the sheet music and a second copyright in the performance of the sheet music.  The recent Led Zeppelin “Stairway To Heaven” case highlights the difference between these two forms of copyrights.  The decision also reinforces the need to project future uses of a copyrighted work to determine the best copyright protection strategy.  

The “Over the Rainbow” lawsuit, filed by the composer Harold Arlan’s estate against technology giants, highlights how rapid innovations in technology interacts with the distribution of copyright works.

“Stairway To Heaven” Leads Court Finding Copyright Protection Didn’t Extend to Performance Elements

Sheet Music Copyright Registration Protection Does Not Cover Musical Performance Elements

Since 2015, the band Led Zeppelin and the estate of Randy Wolfe, late singer of the band Spirit, have been embroiled in a copyright lawsuit over “Stairway to Heaven.”  The estate for Wolfe has claimed that Led Zeppelin stole elements from Spirit song “Taurus” to use in their hit “Stairway to Heaven.”  The wrinkle in the case, however, comes from the issue of whether or not the copyright protection of the sheet music of “Taurus” extends to performance elements of “Taurus” not specifically registered with the United States Copyright Office.  

The music industry has carefully followed this litigation as it winds its way through the federal appeals process, the next hearing set to be argued before the U.S. Court of Appeals for the Ninth Circuit.  As the ruling would affect thousands of musicians, songwriters, and performers, much of the music industry have come out in support of one side or the other. In this particular case, many composers and musicians, numbering over a hundred already, have filed amicus briefs in support of Led Zeppelin, arguing that the copyright protection afforded by registration of sheet music with the U.S. Copyright Office should not extend to performance elements of the same song.

The federal government so far has agreed with the amicus briefs filed, holding that performance elements that may or may not have been present during the recording or performance of a particular song are not automatically covered by the copyright registration of that song’s sheet music.

Read the full article here.

Copyright Woes are Over the Rainbow: Harold Arlen Estate Sues Tech Giants

The estate of famous composer Harold Arlen, composer of the classic “Over the Rainbow,” has sued multiple technology giants over alleged unauthorized recordings of Arlen’s compositions.  In the copyright infringement lawsuit, the Arlen estate claims that there are over 6,000 unauthorized recordings of Arlen’s compositions streaming or for sale on platforms provided by Apple, Amazon, Microsoft, and Google.

Filed in California’s Central District Court, the lawsuit alleges that the unauthorized streaming and sale of Arlen’s compositions amount to massive piracy and, as such, the estate of Arlen is entitled to millions of dollars in damages.  The Arlen estate is asking for maximum statutory damages under U.S. copyright law, claiming that the infringement has been willful.  

At the heart of the case, Arlen’s estate argues that the technology giants’ unauthorized distribution of the copyright works has cheated the Arlen estate out of royalties that should be paid whenever the copyrighted work is copied and distributed on sound recordings. Specifically, Arlen’s estate argues that the “distribution” of the work now also encompasses streaming and digital downloads, in addition to the traditional distribution of works on physical mediums like CDs or vinyl records.  

The rapid innovation of technology plays a particularly relevant role in this lawsuit as it has generally been the impetus behind such rapid unauthorized distribution of Arlen’s works.

Find the full article here.

Click to read the previous Weekly IP Buzz on Thriving Attorney.

For more posts, see our Intellectual Property Law Blog.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.