The legal rollercoaster of the “Stairway to Heaven” case — which pits Jimmy Page and Robert Plant, writers of the Led Zeppelin anthem, against the publishers of the earlier song “Taurus” by Spirit — resumes in a San Francisco 9th U.S. Circuit Court of Appeals on Monday morning.
The lawsuit, initiated by controversial Philadelphia lawyer Francis Malofiy, takes place after a series of lawsuits in which juries have ruled against superstar songwriters, ranging from the Marvin Gaye estate’s 2015 $5.3 million victory over “Blurred Lines” co-writers Robin Thicke and Pharrell Williams to last summer’s $2.78 million decision against Katy Perry and co-writers of the song “Dark Horse.”
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This latest incarnation of the “Stairway” lawsuit is considered so pivotal that the judge in a case regarding similarities between Marvin Gaye’s 1973 classic “Let’s Get It On” and Ed Sheeran’s 2014 smash “Thinking Out Loud” is waiting to see what happens in the Led Zeppelin case before moving forward.
“Taurus,” an instrumental written by Spirit guitarist Randy California — whose real name was Randy Wolfe, and passed away in 1997 — was originally released in 1968, three years before “Stairway.” While similarities between the two songs have long been noted, California declined to pursue legal action during his lifetime.
In May of 2014, Michael Skidmore, the trustee of the Randy Craig Wolfe Trust, sued Led Zeppelin, arguing that “Stairway to Heaven” copied elements of Wolfe’s composition. A jury ruled in favor of Led Zeppelin in 2016, finding that the two songs were not substantially similar.
Skidmore appealed, and in June a three-judge panel of the 9th Circuit Court of Appeals ordered a new trial. The panel found that U.S. District Court Judge Gary Klausner gave instructions that failed to make clear that an arrangement of otherwise unprotectable elements in a song can be sufficiently original to merit copyright protection. In August the U.S. Department of Justice weighed in, supporting Led Zeppelin.
Last fall, Malofiy won a whopping $44.35 million decision for Philadelphia songwriter Dan Marino, who claimed he was cut out of profits and credit from song that was recorded by Usher in 2004. (The suit targeted the track’s other co-writers; Usher was not named in it.)
Variety spoke with Malofiy over the phone from San Francisco last week as he prepared for court. “I’m a small, independent guy fighting against giants here,” he said. Reps for Page and Plant did not immediately respond to Variety‘s requests for comment.
Last week the 9th District court turned down your request to play portions of “Taurus” and “Stairway to Heaven” for the judges at Monday’s argument. What impact will that have on the case?
Nothing. Generally, oral arguments in the 9th Circuit will not allow audio or visual exhibits to be played. They want to stay focused on the legal issues. Instead, you have to submit a record of the audio exhibits, or whatever you intend to offer as part of our appellate record. This new ruling just comes down to how the court wishes to use its time. Nothing’s bothering me now. Monday. I’m gonna kill it.
Why have you been so tenacious in this case?
When it comes to music, there has to be artistic and intellectual honesty. You can’t deny how great [Led Zeppelin] are as musicians. The issue that is going to haunt their legacy, however, is that they fail to give proper and necessary credit. That’s the black cloud hanging over their… what… blimp?
The “Blurred Lines” and “Dark Horse” decisions came down after you launched your “Stairway” and Usher lawsuits. Do you think your cases have influenced copyright litigation for the good of the composers who are suing?
The cases you pointed out, they’re [among] a fleeting few that make it to trial — only the most egregious ones. Then again, look at the money. The Katy Perry case — what did they get from her, $2.7 million? That’s not a lot of money, especially when you consider that her song made over $41 million, and that the victory amount doesn’t account for court and legal fees. [The case is likely to be appealed.] Everything is lined up to protect the industry at the expense of those who create. If there’s a good song, they just take it and deal with the legal ramifications later. If a writer of lesser [financial] worth or influence makes a big deal, they make threats to never allow them in the industry. It’s an unfair playing field.
If the “Dark Horse” payout was so low, how did you win $44 million for Marino?
That was among the top 100 verdicts, nationally, in 2018 as recognized by the National Law Journal. I’m proud of that. I think it came down to our willingness to fight for seven years just to get in front of a jury. I knew that once we got in front of a fair jury, empowering them to have their voices heard, I knew we would win. Many of the damages came from punitive damages — the compensatory was $7 mil — punishing the defendants for their egregious misconduct. We were the underdogs, as usual, in this case. Mostly lawyers wouldn’t spend seven years of their life and hundreds and thousands of dollars to see their clients through to their day in court.
I’m the little guy with a small firm. I don’t go to country clubs. I’m not political. I don’t like wearing suits unless I have to. I’m independent. If a judge tells me to get out of a case, I’m not going to do that. I don’t stop swinging the sword, and if you want to talk about Dan Marino vs. Usher, it ends at $44 million That’s all the vindication that the Eastern District and the 3rd Circuit and all those judges who misunderstood the law — they can hang that verdict alongside whatever-else they have to say about me.
How did you first get involved in this case?
The Zeppelin case came through me working with [former Spirit bassist] Mark Andes who, at one point, was in Heart. When Heart was getting inducted into the Rock and Roll Hall of Fame, the Hall used his image during the ceremony’s run-up, but wasn’t inducting him, as he wasn’t part of Heart’s [original lineup]. He was not a hired gun or sideman, but an actual part of the Heart partnership. He didn’t care if he got inducted, but didn’t want them to use his likeness or songs. I took the case on pro-bono, and as I went through Mark’s history, found out he also was in Jo Jo Gunne, Firefall and Spirit. It was Mark who told me how Zeppelin never gave Randy California credit, and how any time California approached Page, Page would be like, ‘I’ll hire 20 lawyers for every one lawyer you hire.’ [Reps for Page did not immediately respond to Variety’s request for comment.] He kept getting disrespected, and, that wore California down. Mark wanted to help his friend Randy… Initially, Spirit’s members all had a quarter interests in the songs even if one member wrote it, but as the rest of them were doing well — I mean, [singer] Jay Ferguson wrote the theme song for “The Office” — they gave their interests to California who had been struggling. All we wanted was $1 and credit from the start, and we still do.
You’re not really settling for $1 and credit.
No, we would settle for that. [“Stairway to Heaven”], since released, has brought in something like $500 million, depending who the economist is you’re talking to. The way that damages in a copyright case go, you can only go three years back, and all the way forward, our damages get clipped at $55 million.
So something between $1 and $55 million works. After this oral argument, appeals will be decided. Does this go to the Supreme Court?
By June 2021, perhaps. I think either side will petition the Supreme Court. The fact that other judges in other courts are stopping or stalling their cases pending the results of the 9th Court on the 23rd of September is huge. This will decide the scope of copyright protection. It should establish clear new guidelines and will affect copyright law going forward
What do you think of the amicus brief from the Department of Justice last month?
At most, it’s entertaining, as it was so poorly written. The fact that the government put together this ham-and-eggs brief which displayed a poor understanding of the case, shows they have no real grasp of the law. They’re misaligning the court and the issues and shows no understanding of basic copyright concepts. I’ll be excited to argue that in the next several weeks.
There have been many comments about your aggressive questioning of Page and Plant.
Jimmy Page controlled the band and its sound, but, it was weird with him and this case. When we deposed him, Page had this troll-ish behavior. Robert Plant walked into the deposition like a rock star. I spent days deposing them in London. I felt like I got to know them very well. In fact, at trial, Plant looked at me, and complimented me, saying [in a mock British accent], “He’s just f—ing relentless. He just doesn’t quit, does he?”
I know Plant can’t read or write music. On the stand, he was talking about the difference in the [two songs’] melodies. I told him him that I know he can’t write music or read music, so, I asked him to sing “Stairway to Heaven.” Suddenly, he was complaining about how sore his throat is and how he needs his lemons. He bailed out.
Which is funny, because Led Zeppelin recorded a song called “The Lemon Song.”
I took his lemon when the deposition was over. I grabbed it and said, “Hey Robert, I got your lemon now.” I’ll be sure to bring that with me to the next argument.