The ongoing saga of Skidmore v. Led Zeppelin (Zeppelin) is arguably the Ninth Circuit’s most high-profile music infringement case in years. Although there were a number of significant rulings in the case, this article will focus on the Ninth Circuit’s holding in late 2018 (905 F.3d 1116 (9th Cir. 2018)), that the scope of copyright in an unpublished pre-1978 musical composition is determined solely by the content of the deposit copy on file with the U.S. Copyright Office (USCO) for that work. I will call this the “Zeppelin holding,” and as used by the Zeppelin court, consistent with the applicable 1909 Copyright Act, the term “unpublished” includes compositions made available in sound recording form, but not sheet music, at the time of the copyright registration. On March 9th, the Ninth Circuit affirmed the Zeppelin holding en banc, __ F.3d __, 2020 WL 1128808.

Background

Before the current Copyright Act took effect in 1978, the USCO only accepted deposit copies in written form. These deposits contained musical notation in standard format (Notation), and often included lyrics and chord symbols, like this: