Two years ago the band was cleared of stealing its Stairway to Heaven riff, but now a San Francisco court says jurors were misled

This article is more than 1 year old

This article is more than 1 year old

A US appeals court has ordered a new trial in a lawsuit accusing Led Zeppelin of copying an obscure 1960s instrumental for the intro to their classic 1971 rock anthem Stairway to Heaven.

A federal court jury in Los Angeles two years ago found Led Zeppelin did not steal the famous riff from the song Taurus by the band Spirit.

But a three-judge panel of the ninth US circuit court of appeals in San Francisco ruled unanimously that the lower court judge provided erroneous jury instructions that misled jurors about copyright law central to the suit. It sent the case back to the court for another trial.

A phone message left with an attorney for Led Zeppelin, Peter Anderson, was not immediately returned.

Michael Skidmore, a trustee for the estate of the late Spirit guitarist Randy Wolfe, filed the lawsuit against Led Zeppelin in 2015.

Jurors returned their verdict for Led Zeppelin after a five-day trial at which the band members Jimmy Page and Robert Plant testified.

Page says he wrote the music and Plant has claimed the lyrics, saying Stairway was an original. In several hours of often-animated and amusing testimony, they described the craft behind one of rock’s best-known songs.

The jury found Stairway to Heaven and Taurus were not substantially similar, according to the ninth circuit ruling. But it also said the US district judge R Gary Klausner failed to advise jurors that while individual elements of a song such as its notes or scale may not qualify for copyright protection, a combination of those elements may if it is sufficiently original, the ninth circuit judge Richard Paez said.

Wesley Lewis, an attorney who handles copyright cases at the firm Haynes and Boone, said that was an important copyright principle that could prompt jurors to think differently about the case.

Klausner also wrongly told jurors that copyright did not protect chromatic scales, arpeggios or short sequences of three notes, the ninth circuit panel found.

“This error was not harmless as it undercut testimony by Skidmore’s expert that Led Zeppelin copied a chromatic scale that had been used in an original manner,” Paez said.

The panel also found another jury instruction misleading.

Francis Malofiy, an attorney for Skidmore, said in a statement his client faced “unfair rulings at the trial court level” and looked forward “to the challenge of a fair fight”.

“Today, we are proud that three esteemed jurists from the ninth circuit recognized the battle that we fought and the injustice that we faced,” he said.

One of the issues that came up at trial was that jurors could only listen to experts’ renditions of the sheet music for Taurus, not the recorded version of the song as performed by Spirit.

Steven Weinberg, a copyright lawyer who watched the trial, said the sheet music for Taurus wasn’t faithful to the recording, so jurors could not fairly compare the songs.

The ninth circuit in its ruling on Friday said jurors should have been allowed to hear the recording to help establish that Page had “access” to Taurus, meaning he would have been familiar with it.

Weinberg said a new jury will now get to hear a recording of Taurus.

“I believe that ruling alone has the potential of changing the outcome at the next trial because the jury will finally get to compare ‘apples to apples’,” he said.

