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

For music copyright registrations filed under the 1909 Act, such as the plaintiff's work in Skidmore, the U.S. Copyright Office only accepted deposit copies in written form, which generally consisted of musical notation in conventional five-line staff format, frequently including lyrics and chord symbols. The deposit copy of the Spirit song, "Taurus," began this way:

From the trial through to the en banc appeal, the courts at every level held in Skidmore that only the notes shown in the deposit copy could be considered within the scope of plaintiff's copyright, not any additional elements that might be present in Spirit's recording of the song. Thus the district court held, and the Ninth Circuit affirmed, that no recording of Taurus could be played for the jury, for purposes of determining substantial similarity between the parties' works. Perhaps surprisingly, no previous court had so held, and there was some precedent in the Ninth Circuit for allowing the jury to hear a recording of the plaintiff's pre-1978 work.

But the en banc panel in Skidmore found that the text of the 1909 Act was unambiguous, allowing composers to obtain copyright for unpublished works by depositing "one complete copy of such work … if it be a musical composition." Congress' use of the term "complete copy" refuted plaintiff's argument that the deposit copy was "more of a reference point than a definitive filing." Skidmore at 19 (all page references are to the slip opinion). The 1967 edition of the Compendium of Copyright Office Practices supported this conclusion, stating that when registering unpublished musical compositions the Office would consider "writ[ing] to the applicant, pointing out that protection extends only to the material actually deposited, and suggesting that in his own interest he develop his manuscript to supply the missing element." Accordingly, the court found that "it was not error for the district court to decline Skidmore's request to play the sound recordings … on the issue of substantial similarity."

Inverse Ratio Rule Abrogated

The en banc panel also concluded unanimously that the Ninth Circuit's so-called "inverse ratio rule," long rejected by most other Circuits and roundly condemned by copyright scholars, "defies logic" and must be abrogated. The rule, first articulated in Sid & Marty Krofft Telev. Prods. v. McDonald's, 562 F.2d 1157, 1172 (9th Cir. 1977) allows a court to impose "a lower standard of proof of substantial similarity when a high degree of access is shown." Skidmore at 26. In other words, "the stronger the evidence of access, the less compelling the similarities between the two works need be in order to give rise to an inference of copying." Id.

In the four decades since Sid & Marty Krofft, the Ninth Circuit has vacillated between questioning the rule and applying it as binding precedent, even as recently as the "Blurred Lines" case, Williams v. Gaye in 2018, in which the majority initially applied the rule over a sharp dissent, and later deleted all reference to it in an amended opinion. Skidmore traces in detail the evolution of the Ninth Circuit's position on the rule, but also renders all that history irrelevant by concluding:

Although we are cautious in overruling precedent—as we should be—the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.

Skidmore at 32.

In the course of reaching this result, however, the court unfortunately suggests that "as a practical matter" access plays little to no role in the infringement analysis where the plaintiff's work is accessible to the public through "ubiquit[ous]" streaming services like YouTube, Netflix and Spotify:

As a practical matter, the concept of "access" is increasingly diluted in our digitally interconnected world. Access is often proved by the wide dissemination of the copyrighted work. [Citation omitted]. Given the ubiquity of ways to access media online, from YouTube to subscription services like Netflix and Spotify, access may be established by a trivial showing that the work is available on demand.

Skidmore at 31 (emphasis added).

To the authors' knowledge, no court has held that such a "trivial showing" is sufficient to show access. The remarks of the unanimous en banc panel on this point in Skidmore, citing a New York Times article but no case law in support, should in any event be deemed dicta, as they have no bearing on the actual evidence of access that was at issue in Skidmore. The inverse ratio rule may be dead, but the mere "trivial showing" of access by the presence of the plaintiff's work through on-demand platforms like YouTube or Spotify should not generally be sufficient, without more, to "establish" access.

Substantial Similarity

As to substantial similarity, the majority held that Stairway did not infringe because infringement requires substantial similarity of protected expression (unlawful appropriation), and the similarities between Taurus and Stairway—such as a descending chromatic scale in the bass, arpeggios in the key of A minor, etc.—are not copyrightable. Having found that the similar elements were uncopyrightable, the court next addressed Skidmore's claim that Stairway nonetheless infringed the selection and arrangement of similar elements in Taurus, even if, standing alone, each element were not copyrightable.

Dissent on 'Selection/Arrangement' Instruction to Jury

The Skidmore decision ceased to be unanimous with regard to the jury instructions given (or omitted) by the trial court concerning "selection and arrangement." In a nutshell, the plaintiff argued that the trial court erred by failing to instruct the jury that the combination, or "selection and arrangement," of non-copyrightable musical elements could be copyrightable, and thus be infringed if copied by defendant's work, even if the individual elements themselves were not copyrightable. In dissent, Judge Ikuta accepted this argument by the plaintiff, concluding that the trial court committed reversible error by refusing to instruct the jury that an original "selection and arrangement" of commonplace musical elements could be protectable and infringed.

The majority rejected plaintiff's selection/arrangement theory because it found that (1) the proffered elements were not selected and arranged together, but were disparate elements in Taurus, and (2) plaintiff had not argued a "selection and arrangement" theory to the jury. However, Judge Ikuta reviewed the arguments made below and asserted that plaintiff's argument was "a paradigmatic selection and arrangement argument theory," Skidmore at 61, similar to one the Ninth Circuit had accepted in Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000). As the dissent saw it, plaintiff Skidmore was not seeking protection of "random similarities scattered throughout the works," Skidmore at 45, nor was the majority correct to require that "the four bars at issue meet some judicially constructed standard for 'holistic musical design'," citing Justice Holmes in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903)  ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits").

In sum, Judge Ikuta's dissent on the "selection/arrangement" point concluded that "without an instruction that a combination of unprotectable elements can be protectable if combined in an original way, the jury in Skidmore's case was deprived of the opportunity to pass judgment on Skidmore's selection and arrangement theory." Skidmore at 68.

Conclusion

Given the potential stakes of Skidmore and the strong dissent from Judge Ikuta on the selection/arrangement point, there may well be a petition for certiorari. Barring Supreme Court intervention, though, Skidmore's years-long climb up the stairway seems to have fallen short. But as Robert Browning long ago observed, "ah, but a man's reach should exceed his grasp, or what's a Heaven for?"

Robert W. Clarida is a partner in the New York law firm of Reitler, Kailas & Rosenblatt and the author of the treatise Copyright Law Deskbook (BNA). Robert J. Bernstein practices law in New York City in The Law Office of Robert J. Bernstein. He is a frequent author and lecturer on copyright law and litigation.