Tuesday, June 21, 2016

More on the Led Zeppelin Copyright Infringement Trial

Led Zeppelin's Page testifies to 'Stairway' and 'Mary Poppins' song similarity

Musicians, from left, John Paul Jones, Robert Plant, Jimmy Page and Jason Bonham at the"'Led Zeppelin: Celebration Day" premiere in New York, on Oct. 9, 2012.

yahoo.com  by Piya Sinha-Roy  June 16, 2016

LOS ANGELES (Reuters) - Led Zeppelin guitarist Jimmy Page said on Thursday that the riff he is accused of stealing for the band's 1971 hit "Stairway to Heaven" is in fact a commonly used chord progression similar to a melody from the 1964 movie musical "Mary Poppins."

Page, with his ex-bandmate Robert Plant looking on, took the witness stand for a second day in a copyright infringement trial in a Los Angeles federal court.

The civil action, brought by a trustee for Randy Wolfe, the late guitarist for the American band Spirit, contends the British band stole the descending chromatic four-chord progression at the beginning of their signature song from Spirit's 1967 instrumental "Taurus."

Page, under questioning by an attorney for the plaintiff, repeatedly said he was not sure whether any similarity exists between "Stairway to Heaven" and "Taurus."

He was quicker to draw a comparison to "Chim Chim Cher-ee" in "Mary Poppins," when asked about a written declaration he gave for the lawsuit where he talked about "Stairway" and the more uptempo song from the Disney film.
"I may have said the chord sequences are very similar because that chord sequence has been around forever," Page said.

The testimony from Page, whom many consider one of the greatest guitarists in rock history, is in line with similar statements made by attorneys for Led Zeppelin, who argue the chord progression has long been in common use.

In 2008, the business magazine Condé Nast Portfolio estimated that "Stairway to Heaven" had generated more than $560 million in royalties.

More recently, a company to benefit members of Led Zeppelin and their heirs distributed more than 6.6 million British pounds last year, the equivalent of more than $9 million in current dollars, from royalty payments on the band's songs over the previous 12 months, Page testified.

Michael Skidmore, the trustee for Wolfe's estate, has said Page may have been inspired to write "Stairway to Heaven" after hearing California-based Spirit perform "Taurus" while the bands toured together in 1968 and 1969.

The lawsuit seeks a writing credit for Wolfe on the song and damages in an amount to be proven at trial.

Page, 72, on Wednesday testified that he did not recall hearing "Taurus" until recently, after he had been made aware of comparisons being made between the two songs.

Plant is also expected to testify in the case.

(Reporting by Piya Sinha-Roy, Writing by Alex Dobuzinskis; Editing by Alistair Bell and Steve Orlofsky)

Led Zeppelin 'Stairway' Trial Gets Ugly as Plaintiffs Rest Their Case
John Paul Jones debunks longstanding myths, while the defense tries, and fails, for a "Gotcha!" moment

rollingstone.com  by Matt Diehl June 18, 2016

The Led Zeppelin "Stairway to Heaven" trial got ugly in its fourth day as the defense tried, and failed, for a "Gotcha!" moment. Mona Shafer Edwards 

The surviving members of Led Zeppelin squashed one of the group's most established and enduring mythologies when the band's bassist/keyboardist/songwriter John Paul Jones took the stand in day four of the copyright infringement suit "Michael Skidmore vs. Led Zeppelin et al."

It was a rare public reunion for Jones and his former bandmates, Jimmy Page and Robert Plant, with Jones appearing as a witness to support Led Zeppelin's defense in the case involving similarities between Zep classic "Stairway to Heaven" and "Taurus," an instrumental composition from the Sixties-era rock band Spirit.

Apparently, the defense team had concluded no one on the jury is a loyal reader of Mojo: Jones' appearance served mainly to quash the narrative, faithfully recounted for nearly five decades, of how Page and Plant came back from the Bron-Yr-Aur cottage in the Welsh mountains with the beginnings of "Stairway to Heaven" to play to the rest of Led Zeppelin - a surprising assertion Page had also made under oath on Thursday.

In his cross-examination with the plaintiff's counsel Francis Malofiy, Jones was confronted with the playback of an audio recording of a 1972 BBC interview where he stated, "We were all in the country at Headley Grange when [Page and Plant] came back from the Welsh mountains with a guitar intro, verse and maybe more [of "Stairway to Heaven]." Under oath, Jones disputed the veracity of his earlier claims: "It sounded like I was guessing. I was guessing."

ones was also grilled as to how Led Zeppelin came to play the Spirit song "Fresh-Garbage" - built largely around a prominent bass part - as part of the group's earliest live sets. "I forgot who introduced it - I can't remember," Jones testified. "It was a two-bar bass riff that popped out from somewhere. It was a catchy little riff, had an interesting time thing and it caught my ear. I didn't know where it was from."

Jones also claimed that he thought all of the cover songs played by Led Zeppelin in its famed early tour of Scandinavia billed as the "New Yardbirds" were "all Yardbirds songs." When asked if he'd ever seen Spirit live, he claimed that, in the late Sixties and Seventies before the composition and recording of "Stairway," he'd never "gone to any rock concerts, other than playing with Led Zeppelin."

Malofiy's cross examination of Jones also represented the end of the plaintiff's time to plead its case to the court, having used up all 10 hours allotted by the judge presiding over the federal civil trial, Gary Klausner. With several defense witnesses remaining on the docket - including, potentially, Page's co-defendant, Zeppelin frontman Robert Plant -  Judge Klausner made an unusual exception: Malofiy would be allowed to cross-examine all of Led Zeppelin's witnesses for just 10 minutes each.

The numbers that came out of the testimony of Dr. Michael Einhorn, a Yale-educated economist who appeared as an expert witness for the plaintiff side, were also tantalizing. In his analysis, Einhorn revealed Page, Plant, Jones and the heirs of drummer John Bonham split £58.5 million across all 87 songs in the Zeppelin catalog in the three-year statutory period being hotly debated throughout the trial.

However, Einhorn claimed the defense had not provided him with the "pro-rate technology" used to determine exactly how much of those monies came specifically from "Stairway" royalties.

"You don't have to play to the jury" was an admonishment Judge Klausner bestowed on both sides' counsel throughout the day's proceedings. But the most astonishing example of that strategy came not from the notoriously hotheaded Malofiy, but Led Zeppelin main counsel Peter Anderson, whose patrician white-shoe countenance has been a defining feature of his defense. During Anderson's cross-examination of the trial's plaintiff, Michael Skidmore - the trustee of "Taurus" songwriter Randy "California" Wolfe's estate - Anderson asked Skidmore if "it made a difference to [Wolfe's mother] Berenice Pearl if [Wolfe's only surviving heir] Quinn Wolfe [was cut out of receiving royalties] because he was the illegitimate son of Randy Wolfe?"

It was a "gotcha!" moment that backfired - more expected coming from, say, a trial in Game of Thrones or an old episode of Days of Our Lives. It provided perhaps the ugliest moment of a contentious trial, and was quickly ruled as legally inadmissible by Judge Klausner.

Another cynical moment from the defense occurred when, during the testimony of another expert witness - accomplished musician, musical director and producer Robert Mathes - Anderson requested the court play a 2012 video from the Kennedy Center Honors tribute segment to Led Zeppelin. Mathes - who's worked with everyone from Sting to Yo-Yo Ma - had been the musical director for this performance, a cover of "Stairway" by the rock group Heart featuring Jason Bonham on drums. The primary relevance of the video, however, seemed to be an attempt to impart the prestige of President Obama and the First Lady, who appeared in many audience reaction shots solemnly rocking out to "Stairway." Judge Klausner quickly put the kibosh on this gambit, ruling that only the audio portion of the song could be played to the jury.

As its primary expert witness testifying to the musical similarities between the Spirit and Led Zeppelin compositions, the defense called Dr. Lawrence Ferrara, a full professor of music and "director emeritus" at NYU and an esteemed musicologist with an impressive list of music-legend clients - Billy Joel, Paul McCartney, Elton John, Marc Anthony, Enrique Iglesias, Lady Gaga, Gloria Estefan, Bruce Springsteen, Brad Paisley, Jay Z, Usher, Dr. Dre, Kanye West, Eminem, Prince and James Brown among them.

On the stand, Ferrara made a sophisticated analysis as to why "Stairway to Heaven" did not plagiarize "Taurus." However, his academic approach proved confusing, and at times patronizing; when asked about his credentials, Ferrara bragged about owning all 29 editions of the Grove Dictionary of Music and stated, "I have authored or co-authored three books, one of which is in its fifth edition."

Ferrara's contribution to the case came off as more collegiate lecture than testimony, as he faced the jury directly while playing piano to demonstrate his analyses. Judge Klausner had to remind the defense more than once to move on to another question whenever Ferrara veered into topics unprovoked by inquiry. Ferrara proved testy and defensive in cross-examination by Malofiy - who raised an objection to his time on the stand as "pre-planned [and] not testimony." (Curiously, indeed, exhibits of evidence supplied by counsel would appear on video screens just as Ferrara was making points supported by them.)

Amusingly, Ferrara was almost interrupted at one point by a lookie-loo who had wandered into the courtroom with a Fender Stratocaster, likely hoping for an autograph from Page; said lookie-loo was quickly dispensed from the courtroom by a bailiff.

Ferrara's arguments proved most compelling - and potentially damning for the plaintiffs - when he played the sheet music for "Taurus" followed by a performance of the beginning of "Stairway to Heaven"; to the ear, his renditions did sound "dramatically different," as he noted repeatedly. Ferrara went on to play more "prior art" compositions with similar chromatic lines to "Taurus" and "Stairway" - demonstrating his point that the musical "building blocks" shared by them are not protectable intellectual property, but commonplace throughout music.

However, the similarities he demonstrated between "Stairway" and the Antônio Carlos Jobim composition "How Insensitive" and Richard Rodgers and Lorenz Hart's standard "My Funny Valentine" made it seem as if Jobim and the estates of Rodgers and Hart might want to call their attorneys.
As such, another example of "prior art" Ferrara invoked was the Modern Folk Quartet's 1963 version of the public-domain Appalachian folk traditional "To Catch a Shad." When Ferrara played the first part of "Stairway to Heaven" followed by "To Catch a Shad" on the piano, it proved one of the trial's most startling revelations yet: it was almost impossible to tell them apart - they sounded like the exact same song.

The tactic was intended to demonstrate the unoriginality and ordinariness of the musical techniques shared by "Taurus" and "Stairway" - that they can be found utilized in music compositions in many forms and genres going back hundreds of years. Instead, Ferrara's example may not have been received as intended. To some ears, it suggested another possibility - that Led Zeppelin had no qualms bogarting whole chunks of preexisting compositions in the songwriting process that led to "Stairway."

Led Zeppelin Asks Judge to Stop 'Stairway to Heaven' Trial with Victory in Band's Favor

billboard.com  6/20/2016 by Eriq Gardner

Robert Plant of Led Zeppelin performing on stage at Earl's Court in London in May 1975. 
Michael Putland/Getty Images 
Jimmy Page, Robert Plant and Warner Music argue the plaintiff has failed to carry a burden of proof on multiple issues.
The "Stairway to Heaven" trial -- the one examining if Led Zeppelin lifted its famous song from Spirit's 1967 instrumental "Taurus" -- hasn't yet made it to the chorus of a jury's deliberations. However, on Monday, attorneys for Jimmy Page, Robert Plant and Warner Music urged U.S. District Judge R. Gary Klausner to halt the proceedings now because the plaintiff hasn't established the elements of copyright infringement.

The move comes after Michael Skidmore, the trustee who manages the estate of songwriter Randy Wolfe, rested his case after three days of testimony. The plaintiff, represented by attorney Francis Malofiy, played the two songs and tried to pin Page down on hearing "Taurus" before composing "Stairway to Heaven." Led Zeppelin's guitarist testified that he hadn't heard "Taurus" until a few years ago and also refused to accept the two works are similar.

It's now Led Zeppelin's turn to present their own case, but before the trial possibly resumes on Tuesday, the judge is being asked to make a judgment as a matter of law.

In a motion made today, the defendants argue that copyright claims fail because the copyright registration of "Taurus" hasn't been put into evidence, that the Wolfe Trustee does not own that copyright, and also that the plaintiff has not presented admissible evidence of Led Zeppelin's access to "Taurus" nor evidence of striking or substantial similarity between the musical compositions.
When Judge Klausner decided to deny a summary judgment motion, he spelled out what would be triable issues.

"Although the parties’ pre-trial filings identified what plaintiff Michael Skidmore needed to prove to establish his claims, Skidmore failed to prove required elements of his claims for direct, contributory and vicarious copyright infringement," states the defendants being led by attorney Peter J. Anderson.
Anderson says it's not enough that Skidmore only submitted at trial a claimed printout of a summary of the 1996 renewal registration. Where's the 1967 copyright registration? And who really owns "Taurus"?

Pointing to Skidmore's testimony about Wolfe's songwriter's agreement, the defendants argue that Wolfe "assigned his renewal rights to Hollenbeck" and thus Hollenbeck, not Skidmore, owns the composition. "Further, since Skidmore abandoned his prior beneficial ownership claim, he has no basis to sue and judgment is proper in defendants’ favor," the papers add.

If Klausner gets past arguments of non-ownership of "Taurus," the judge will also have to decide whether there's enough evidence to let a jury decide the Wolfe song has been infringed. The crucial factor here is access -- something that didn't come up in the "Blurred Lines" copyright case because Marvin Gaye was so popular that Pharrell Williams and Robin Thicke conceded the issue.

Here, Led Zeppelin say that the witnesses testifying thus far -- including Wolfe's sister, Sprit's bassist Mark Andes and one of Skidmore's friends -- haven't told the jury they saw members of Led Zeppelin at a Spirit concert when "Taurus" was performed. The band adds, "And, while – nearly a half century later – Mr. Page found Spirit’s first album in his collection of 4,329 albums and 5,882 CDs, there is no evidence he had the album 45 years ago."

The other arguments being tossed to the judge -- no substantial similarity, failure to present evidence of actual damages or defendants' profits -- are probably ones that won't end the case. But given that Klausner has made it a point of emphasis that the copyright at issue pertains to elements of the composition and not any of the sound recordings -- who knows? If Led Zeppelin can't bring a halt to the trial now, the band will not only made these arguments of non-ownership, a lack of access and insufficient similarity in the coming days directly to the jury, they are expected to bring musicologists and possibly Page and Plant to the witness stand to talk about how what's claimed to have been stolen is generic and not protected by copyright law.

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