Gemini Jam?

The most famous legal battle in rock music is back in the news because a judge’s recent ruling on a motion in Skidmore v. Led Zeppelin, et al. will allow the case to proceed to trial on a copyright-infringement claim by Randy California involving the Zep hit “Stairway to Heaven.”  

After playing guitar with Jimi Hendrix as a member of the Blue Flames, California (whose real name was Randy Wolfe) formed a band called Spirit. That band’s debut album, a self-titled 1968 release, included a short instrumental track called “Taurus.” Less than three minutes in length, Taurus is comprised of spacey atmospherics and a quiet, snaking guitar line that appears about halfway in.

In 1971, Led Zeppelin released their fourth album, Led Zeppelin IV. The longest song on that release was Stairway, a building howler that lasts over eight minutes. In this rock’n’roll giant’s biggest hit, though, many heard something that sounded like Taurus. Musicians borrow from each other all the time, but did Jimmy Page really lift the introduction to this signature song from a Randy California obscurity released three years earlier?

California died in a drowning accident in 1997, and, in 2014, his estate filed the referenced copyright-infringement lawsuit making that precise allegation against Led Zeppelin, its living individual members, and various publishing and record companies presumably having some involvement in the publication and distribution of Stairway to Heaven.

A week ago, the court ruled that California’s estate– actually the Randy Craig Wolfe Trust– was entitled to a legal answer to its question at a trial, although the judge did dismiss all claims against bass guitarist John Paul Jones, who is not listed as an author of Stairway, and the publishing and record companies.

As intellectual property law expert David Post observed, the question– “Did the author(s) of ‘Stairway’ copy a substantial amount of copyright-protected material from ‘Taurus’ and incorporate it into their song?”– sounds simple enough, but providing a legal answer will be complicated:

The plaintiff not only has to establish that the defendant copied from his work, but also that the material that was copied was protected by copyright. Much of “Taurus” — much of every song — isn’t protected by copyright at all, because every song contains a great deal that is not “original” to the song’s author. “Taurus” begins in the key of A minor — but that’s not part of Randy Wolfe’s copyright, of course. So that similarity between “Taurus” and “Stairway” — the fact that they both begin in A minor — is completely irrelevant to the infringement analysis and has to be “filtered out”; even if Led Zeppelin had copied that from “Taurus,” it wouldn’t matter, because it’s not protected by copyright. Same for “a descending bass line” — not protected.

So that means that not only does the court have to reconstruct the circumstances surrounding the creation of “Stairway” (to see whether material had been “copied” into it), the court also has to reconstruct the circumstances surrounding the creation of “Taurus” (to determine how much of it was “original” when it was created and, therefore, protected).

And all of this may have to be done (as here) 40 years or so after the fact(s).

Is there a nugget of Taurus in the Stairway intro? Sure. Did Page really copy from California? That’s less clear.

One thing that is clear is that California himself didn’t sue Page & co. during his lifetime. Maybe he didn’t care. Maybe it had something to do with a musician’s pride. Maybe he didn’t think Stairway was a copy. Or maybe he didn’t want to do something that would solidify this dispute as the most popularly memorable part of his legacy. Spirit already was an underappreciated group, and California could have foreseen that a lawsuit like the one his estate filed after his death would cast a long shadow over all of his other work.

I have yet to hear a Spirit song or album I haven’t enjoyed, and my favorite is their second release, The Family That Plays Together. The combined legal-music news cycle has its demands, though, so this week’s Jam is the song at issue, “Taurus,” from the band’s 1968 debut album:


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