Led Zeppelin Copyright Ruling a Loss for Pa. Lawyer—but Impact Could Be Widespread

Law.com reports…

In a win for iconic rock band Led Zeppelin, the U.S. Court of Appeals for the Ninth Circuit, rejecting a Media-based attorney’s argument, ruled en banc that the inverse-ratio rule, which made substantial similarity in copyright cases very easy to prove, should be discarded.

Led Zeppelin and its music labels were the winner of Monday’s copyright decision over the song “Stairway to Heaven.” The estate of a songwriter that claims the super group copied his work got the short end. But the estate wasn’t the only one.

Among the collateral damage from an en banc ruling from the U.S. Court of Appeals for the Ninth Circuit was a 2002 precedent written by former Chief Judge Alex Kozinski endorsing the so-called inverse-ratio rule. And its a precedent Kozinski has been relying on in his first case back at the court as a private advocate.

M. Margaret McKeown’s opinion for a 9-2 en banc court in Skidmore v. Led Zeppelin overruled the court’s inverse-ratio rule. She noted that only one other circuit follows the 43-year-old rule while four others have rejected it. The rule says that the more access an alleged infringer has to a copyrighted work, the less proof is needed of substantial similarity by an allegedly infringing work.

In Skidmore, the trustee of the estate of songwriter Randy Wolfe argued that Led Zeppelin and his band Spirit performed at the same music shows in the 1960s and ’70s, and that Led Zeppelin guitarist Jimmy Page admitted owning a Spirit album containing the song “Taurus,” which the estate says Led Zeppelin copied. The trustee’s attorney, Francis Malofiy of Media, argued on appeal that Page’s access to the song lowered the standard of proof, and that U.S. District Judge R. Gary Klausner should have instructed the jury on the inverse-ratio rule.

McKeown said in Monday’s opinion the absence of the instruction didn’t matter, because the Ninth Circuit is doing away with the inverse-ratio rule. Confusion about when and how to apply the rule, criticism from other circuits, and the reality that services such as Google, YouTube and Netflix have made so much artistic work accessible have rendered the inverse-ratio rule unworkable, McKeown wrote.

“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,” McKeown wrote. “Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.”

The Recording Industry Association of America and a group of law professors led by Stanford’s Mark Lemley were among the amici curiae asking the court to throw out the rule. “Even the strongest evidence of access would not make up for an inadequate degree of similarity,” UCLA law professor Eugene Volokh wrote for the RIAA.

Full report at https://www.law.com/thelegalintelligencer/2020/03/09/led-zeppelin-ruling-topples-kozinski-precedent-and-maybe-his-copyright-case-too-402-59588/