For the past five years, the copyright bar and the music industry have carefully followed the many twists and turns of Skidmore v. Led Zeppelin, ___ F.3d ___, 2020 WL 1128808 (9th Cir. March 9, 2020) (Skidmore), a potentially monumental infringement case in which plaintiff asserts that the opening of the iconic Led Zeppelin song “Stairway to Heaven” (“Stairway”) was copied from the introduction of a little-known 1967 instrumental written by the guitarist of a California rock band called Spirit.

On March 9, 2020, a unanimous en banc panel of the entire Ninth Circuit affirmed portions of a prior three-judge ruling that “Stairway” did not infringe the Spirit song, and in the process resolved some thorny issues involving substantial similarity and copyright scope that will be important for future litigants, particularly in the Ninth Circuit. Judge Sandra S. Ikuta issued a forceful partial dissent challenging the trial court’s jury instructions on originality, which raises questions about how courts should protect the “selection and arrangement” of non-original elements in a musical composition. This column will briefly review some of the main takeaways from the en banc decision.

Deposit Copy Defines Copyright Scope