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Led Zeppelin & Canadian Copyright Law

• Lawson Lundell • Season 1 • Episode 4

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On Episode 4: Led Zeppelin & Canadian Copyright Law – Alix Stoicheff speaks to Mark Fancourt-Smith about the fundamental differences between Canadian and United States copyright law using the recent ruling in the U.S. involving Led Zeppelin’s song “Stairway to Heaven”, and some other key examples.

Alix Stoicheff  00:00

What can a recent ruling in the United States involving Stairway to Heaven tell us about what is protected in Canadian copyright laws?

Mark Fancourt-Smith  00:15

Welcome to LawsonInsight. I'm Mark Fancourt-Smith, a litigation partner in Lawson Lundell is Vancouver office. 

Alix Stoicheff  00:21

And I'm Alixandra Stoicheff, a litigation associate located in our Calgary office. Thank you for joining us on our bi-weekly podcast brought to you by Lawson Lundell LLP, LawsonInsight breaks down the latest legal news and updates to give you the information and tips that you need on how the law affects your business. Today we're going to switch things up a little bit, on this episode, I will actually be interviewing Mark about the fundamentals of Canadian copyright law and…

Mark Fancourt-Smith  00:45

Led Zeppelin. Specifically Stairway to Heaven, but we're also going to touch on Marvin Gaye. One of the joys I'm realizing in hosting a podcast, is that when someone says what should we talk about next, you can say, “I think we should talk about Stairway to Heaven”, and no one really stops you. And I'm also fortunate to have a co-host and producers that trust me to an extent, even if Alix’s first questions were, for draft, what are you talking about? And why are we doing this? In in all seriousness, my practice involves a fair bit of intellectual property litigation. And within that there's a fair bit of copyright litigation including bringing in defending against claims for copyright infringement, which can be unauthorized reproduction, or as in this case, copying or alleged plagiarism. So earlier in the year, when the US Ninth Circuit Court of Appeals upheld the dismissal of a lawsuit brought against Led Zeppelin earlier in respect of their minor hit, Stairway to Heaven. It was interesting, not just because of the story within the case, but it also highlighted some interesting distinctions, I thought, between US and Canadian copyright law, and what is and isn't protected. 

Alix Stoicheff  01:50

So Mark, let's start from that last point and talking about what is and isn't protected under copyright law. 

Mark Fancourt-Smith  01:56

So to take a step back, intellectual property law is based on a fundamental bargain in return for advancing knowledge, or contributing to society or culture, you're rewarded with forms of exclusivity and protection, which in effect, make it worthwhile to create. So for example, patents in return for coming up with a new invention. And in filing the patent, which explains exactly how to make it, you get a time limited monopoly on making it 20 years, copyright in return for creating a new work, artistic scholarly, there's a wide variety of works that are covered, you have the sole right to reproduce, license, etc. for a specific amount of time. baseline is the lifetime of the author plus 50 years for sound recordings, it's when the sound recording was made in 50 years. So, another key concept is that the law protects expression, but it doesn't protect ideas. So for copyright, that means that the work has to be set down in a permanent medium somewhere. So the painting has to be painted, it can't just exist to the artists head book has to be written. So once it's fixed, once it's in that format, then copyrights automatic, you don't have to register, although that does give some advantages in terms of evidence and the remedies that you have available. But the point of insisting on fixation is again, it's the expression which is protected, it's the way something was said or depicted are playing and not the idea itself. Also from an evidentiary standpoint, courts have to be able to hold the works up side by side, in order to determine whether or not there was copying. 

Alix Stoicheff  03:29

So my thought I just jump in here. This idea of holding works up side by side. How does that play out? No pun intended, in terms of music copyright? 

Mark Fancourt-Smith  03:38

Well, in terms of musical work, there's a couple of ways to do this. So first of all, the music can be written down to sheet music, or the musical work can be recorded. In that case, it gets fixed, it can then be registered or deposited in the copyright registry. But as I said, that part isn't necessary. And we'll see the distinction between Canada and the US in this respect. It also doesn't necessarily need to be published to have copyright protection. But given that part of any copying case is showing that the work in question was copied and isn't independently created, the more widely disseminated the more likely someone will hear it? And then the the closer you are to establishing that they were exposed to it and the allegedly infringing works derived from it. 

Alix Stoicheff  04:20

Okay, so what happened in the Led Zeppelin case? 

Mark Fancourt-Smith  04:24

So, in the early 2010s, the state of late guitars for British rock band called Spirit, who I had never heard of either, that led that Led Zeppelin in writing Stairway to Heaven had copied their 1968 song Taurus. So, just to take a step back here, making allegations of plagiarism against Led Zeppelin is not the biggest stretch. A lot of bands in the 60s were doing it I mean, the Rolling Stones recorded love and vain but didn't credit Robert Johnson, The Beatles swiped elements from a lot of musicians including Chuck Berry and PB Creighton and Zeppelin kind of took it a little further. And actually, Jimmy Page has sort of admitted this. But in a lot of cases, they only gave credit after they were sued or under duress to people like Willie Dixon or Joan Baez and some of their biggest songs like “A Whole Lot of Love”, “Dazed and Confused”, “Babe, I'm Gonna Leave You”, “The Lemon Song”, “We're All Ones”, where credit was ultimately only given after the fact and not infrequently in settlement of lawsuits. So, it wasn't the wildest allegation. But in this suit, the plaintiff claimed that Zeppelin had copy portions of Taurus and specifically the opening melody for the introduction, that tell-tale guitar part of Stairway to Heaven. So, they pointed to the fact that Zeppelin had been on tour with spirit in the late 60s. And Jimmy Page ultimately admitted under cross examination that he had some of their albums, including the one with the song, and it came out that Zeppelin actually did cover a couple of songs by Spirit and some early live shows. Now, we can't actually play the songs, though, for a couple of reasons. 

Alix Stoicheff  05:58

And actually, Mark, so I think this is a really interesting point. Why can't we play these songs because you'd think it would be a natural way for us to show whether there is a really strong similarity between these two songs? 

Mark Fancourt-Smith  06:11

Well, for two reasons. The first one is actually has to do with the case itself. So a quirk of us copyright law is that in the States, before the Copyright Act was amended in 1976, musical works had to be deposited in sheet music form, and that was what was protected. So in this case, the plaintiffs argued that they should be allowed to play the songs, and specifically, there's right next to a Stairway to Heaven to try and show the jury the similarity. This was a huge point of contention during the trial. The request was refused, and it was ultimately a point on appeal. Canada is a bit different, and copyright exists as soon as the work is created and it can exist in a sound recording as easily as sheet music. It doesn't have to be deposited. But this was a real bone of contention in the trial. The second reason as when I asked, I was told there was no way that we were going to be allowed to pay the license fee to play Stairway to Heaven on the podcast. 

Alix Stoicheff  07:08

Yeah, somehow I think the powers that be at the office, may not sign off on that particular expense report. Even for you, Mark. Okay, so you mentioned earlier that there was an appeal, and that that appeal was decided this year. So, what happened?

Mark Fancourt-Smith  07:21

In 2015, the case was dismissed a jury found that that there wasn't copying. In 2018, the appeal, the first appeal was heard the plaintiff and appealed it on the basis that the judge had given the jury incorrect jury instructions. And a three judge panel at the Ninth Circuit Court of Appeal ordered a new trial. Zeppelin appealed to a full panel of the court, which eventually upheld the original trial decision and one of the things they specifically found was that the judge was correct in not allowing the music to be played. Because sound recordings weren't protected at the time, they were only protected in 1972. And that it was only after the Act was amended in 1976. That distribution of a sound recording would even qualify as a musical composition. 

Alix Stoicheff  08:05

Okay, and so brass tacks, Zeppelin won if I could I can I put it that way. 

Mark Fancourt-Smith  08:10

Zeppelin wins. Zeppelin rules.

Alix Stoicheff  08:14

Okay, so Mark, at the beginning of this podcast, you promised our listeners that in addition to being able to have this opportunity to talk to us about Led Zeppelin, that there were a couple of points of distinction or differences that this case really highlights in terms of the difference between Canadian copyright law and American copyright law. And so can you tell us a little bit more about that? 

Mark Fancourt-Smith  08:34

Yeah, so in Canadian copyright law, for copying to be found, the portion of the song or the person of the work at issue has to be substantially similar. This is this is really medium specific, it can often be very difficult to determine, because, of course, you know, there were copyright subsists and things like music, painting, sculpture, computer code. So you need, it's context specific, there's often expert evidence needed to determine how similar is this? Or is this not? And in music, for example, courts have to separate out things like clichés or time born elements of songs and think of something like a 12 bar blues riff or stuff that's coming into the public domain. separate that from what's actually original in the song and the question. And then they have to figure out how substantial a part it is of the song and question is not necessarily always a question of length. But really, how integral is that bit to the song in the states starting in around 1977, there was what's called the inverse ratio doctrine. So what this said was, the more widely a song was known, or the more famous it was, then the lower the standard was for finding that another song, copy dead, which is a really strange concept, because what it does is it's not a question of saying, we can presume that you had access to it. It's we are going to use a lower standard to determine whether or not you copied it based on how famous the origin song is so it created a double standard for famous songs. And it almost you could lead to protecting the fame as opposed to protecting the expression, which is what it's all supposed to be about. 

Alix Stoicheff  10:12

Okay, so this inverse ratio doctrine, are there any examples of sort of odd results that arose from the application of this test? 

Mark Fancourt-Smith  10:21

There's one which in all likelihood, led to a portion of the Court's decision in the Zeppelin case. So in 2013, there was the hit Blurred Lines by Robin Thicke and Pharrell Williams, it was seen as the song of the summer in 2015. Those songwriters were sued by Marvin Gaye's estate on the basis that Blurred Lines allegedly copied Marvin Gaye's head, “Got it Going on.” So the songs have a very similar feel. Recording style, both of them sound like they're sort of recorded in the middle of a party, and you can hear glasses clinking, the vibe of the recordings are very much the same. And the vibe of Blurred Lines was clearly indebted to Marvin Gaye. But the thing is, the songs aren't very similar. When you break them down, when you actually look at the musical elements, when you actually break it down and look at the melody. They're not that similar. And you can't copyright a feeling, you can't copyright an idea or an attitude or a vibe. So if you listen to those two recordings side by side, and I'd be told that we don't have the budget for that either. The jury found the Blurred Lines songwriters liable. So this was widely regarded as a terrible decision with significant implications for the music industry and creativity in general, because it was casting a far wider net than the expression itself. It was actually upheld by the Ninth Circuit, which is the same court that decided this Zeppelin case. In the first draft of the opinion, they explicitly relied on the inverse ratio rule, but that was then taken out of the ultimately published opinion, but it clearly underpinned the decision. So interestingly, in the final ruling of the full panel of the Court of Appeal, in the Zeppelin case, the court actually said it is time to put this doctrine to bed, it is outdated. It's not legally sound, it creates a double standard for famous works, as opposed to less famous works, when all works are supposed to receive the same protection. And in the context of the digital world. How do you decide access anyway, everybody has access to anything. And so ultimately, the court put a dagger in the heart of the doctrine. That's not something that we ever had to deal with in Canada, we have always proceeded on the basis that the test for finding substantial similarity does not depend in any way on the fame of the original work. 

Alix Stoicheff  12:46

Okay, interesting. Okay, so if you were going to grab a few takeaway points from this, what would be your top sort of two or three? 

Mark Fancourt-Smith  12:53

I think first, and I'm not just trying to argue home field advantage. But Canadian copyright law, I think has turned into a bit of a more sensible course in terms of recognizing more methods of fixation earlier on, and, and remaining that way. And I think, you know, in having a uniform standard, we're now actually closer we in the US copyright law than where we were. Second is, as we said, Led Zeppelin did not steal this time. And the third, I'm again, going to make a pitch that we need a larger budget for songs on this podcast. 

Alix Stoicheff  13:24

Mark, I'll back you up on that request. Mark, thank you so much for sharing your mutual love of Led Zeppelin music generally and copyright law here with us today. It's been great chatting with you about this. 

Mark Fancourt-Smith  13:37

Thank you so much for indulging me on the topic, and thanks to everyone for joining us on LawsonInsight.

Alix Stoicheff  13:43

And for more information, please do visit our website at lawsonlundell.com. And you can also stay up to date by connecting with us on Twitter, using the handle @LawsonLundell. And by subscribing to the podcast and it's now on Apple, Spotify or Google podcasts. Thanks so much for listening.