Judge Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit. Photo by Jason Doiy / ALM

There was much harmony along with a few discordant notes Monday as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit took up the copyright case involving Led Zeppelin's "Stairway to Heaven."

All the judges who spoke during Skidmore v. Led Zeppelin seemed to agree that sheet music deposited with the Copyright Office, not sound recordings, define the scope of copyright for musical works governed by the 1909 Copyright Act. That prompted bitter protests from Francis Malofiy, the attorney representing the estate of Randy Wolfe, which alleges that Led Zeppelin copied Wolfe's 1967 song "Taurus" when the group wrote Stairway to Heaven.

Malofiy argued that the sheet music was transcribed by a third party, and Led Zeppelin didn't read it. Rather, Zeppelin guitarist Jimmy Page had access to Taurus from watching Wolfe's shows and from owning five of his band's records. That created "an Orwellian world" at trial where the parties were "comparing something that Randy didn't write and that Jimmy Page didn't read," Malofiy said. The result was a verdict that "promotes form over substance," Malofiy said.

A Ninth Circuit panel threw out the verdict last year but now the en banc court is taking a second look.

Ninth Circuit Judge Sandra Ikuta didn't seem moved. "What do we do with ABKCO Music v. LaVere?" a 2000 Ninth Circuit case that says copyrights cover sheet music not recordings until the law changed in 1976.

Malofiy argued that playing the recording for jurors would at least help flesh out the composition that's embodied in the sheet music. If allowed to do so on a retrial, they'll recognize the similarities and the estate will win, he told the court.

"And you'll lose the case" if they don't, Ninth Circuit Judge Andrew Hurwitz said. "A hundred times out of a hundred."

While there seemed to be broad agreement among the judges that the sheet music defines the copyrighted work, at least until the Copyright Act of 1976 was enacted, the questioning suggested disagreement on whether the selection and arrangement of a limited number of notes can be copyrighted.

Malofiy argued that if an original arrangement of otherwise unprotectable elements can't be copyrighted, songs such as Lynyrd Skynyrd's "Free Bird" wouldn't enjoy copyright protection.

The music industry and the U.S. government has argued that if the estate is entitled to such a jury instruction, the Ninth Circuit should make clear that the selection and arrangement of otherwise unprotectable elements should be afforded only "thin" copyright protection.

Davis Wright Tremaine partner Peter Anderson argued for Led Zeppelin and its music labels that Malofiy had not argued selection and arrangement at trial. But Ikuta suggested that Malofiy simply used the word "combination" to mean the same thing, and suggested he was entitled to an instruction. "Where did the court tell the jury that otherwise unprotected elements in combination could be protected?" she asked.

"If you're going to go selection and arrangement, then the arrangement has to be original," the elements have to be numerous, and the copying "virtually identical," Anderson said.

DOJ attorney Daniel Tenny, arguing as amicus curiae, echoed that position.

But Ikuta noted that the Ninth Circuit has so far only adopted the "thin protection" framework for cases involving computers and other functional works. "It seems to me music was treated more like books," where protection is broader, she told Tenny. "We would be breaking new ground to apply this thin protection concept to musical compositions, is that not right?"

Tenny said the government is merely advocating general principles of copyright. "It has not been context-specific in the past," he said.

When Malofiy returned for rebuttal, Judge Jacqueline Nguyen asked if he agreed with the government that the fewer the unprotectable elements in an original combination, the less protection they should get. (Nguyen dissented in the Ninth Circuit's 2018 Blurred Lines case, saying the court was making it too easy to allege infringement of common musical phrases.)

"You can have two notes and they're protectable," Malofiy said, humming the theme from the moive Jaws—"Da-na. Da-na da-na da-na"—as an example.

"Is it the two notes that's protected, or the two notes repeated," Nguyen asked.

Chief Judge Sidney Thomas, and Judges M. Margaret McKeown and Susan Graber all seemed to suggest that the court could sidestep the selection-and-arrangement issue by holding that Malofiy had waived it.

"You didn't really argue a selection-and-arrangement theory at trial, did you?" Thomas asked Malofiy.

"Absolutely we did your honor, and to say otherwise is false and misleading to this court," Malofiy said.

McKeown said that Malofiy had objected to other instructions, but not to the failure to give selection and arrangement. "It seemed to me your focus was on the original parts of this, and not on some combination," she said.