There's a lady who's sure

All that glitters is gold

And she's buying a stairway to heaven



"Stairway to Heaven" intro.

Starting Tuesday, one of rock and roll's most iconic songs, "Stairway to Heaven," will be scrutinized by a federal jury tasked with deciding whether the 1971 Led Zeppelin song—which has generated some $500 million (£350 million) in revenue—infringes the 1968 instrumental song "Taurus" produced by the psychedelic band Spirit.

This isn't the first time Zep has been accused of infringement. In 2012, the band struck an out-of-court deal with singer-songwriter Jake Holmes regarding his 1967 song "Dazed and Confused." Zep's 1969 debut album has a track with the same name and similar lyrics.

Despite being filed in 2014, the "Stairway to Heaven" case is only now making it to trial because of a slew of pre-trial motions, including those by Led Zeppelin seeking to have it dismissed. The case is being brought by the trust of Randy Wolfe, aka Randy California, and it essentially declares that Zep's mind-numbing opening to "Stairway to Heaven"—an acoustic guitar arpeggiating chords in a descending pattern—is a complete ripoff of California's "Taurus" which he wrote for the band Spirit. Zeppelin toured with Spirit in 1968, and California's complaint alleges that Zep guitarist Jimmy Page had heard "Taurus" before the debut of "Stairway to Heaven, which appears on "Led Zeppelin IV." Billboard describes the album as "a cultural touchstone and one of the most popular releases in US history." "IV" has gone platinum 23 times.

According to the lawsuit in Los Angeles federal court:

A year after touring with Spirit, Page allegedly wrote the most famous rock song of all time—"Stairway to Heaven"—by fireside in a remote cottage in Wales called Bron Yr-Aur; it was released in 1971. It is no coincidence that the iconic notes to "Stairway to Heaven," that have enthralled generations of fans, sound almost exactly the same as California's ethereal yet classical guitar composition in "Taurus."

The Los Angeles federal judge presiding over the case, R. Gary Klausner, described (PDF) the suit as this:

The similarity consists of repeated A-minor descending chromatic bass lines lasting 13 seconds and separated by a bridge of either seven or eight measures. Moreover, the similarity appears in the first two minutes of each song, arguably the most recognizable and important segments of the respective works.

Randy California, who died in 1977, never seemed litigation-happy at the time, but clearly felt exploited.

According to an interview published in 1997 by Listener Magazine, which was included in the lawsuit:

Well, if you listen to the two songs, you can make your own judgment. It's an exact... I'd say it was a rip-off. And the guys made millions of bucks on it and never said, "Thank you," never said, "Can we pay you some money for it?" It's kind of a sore point with me. Maybe some day their conscience will make them do something about it. I don’t know. There are funny business dealings between record companies, managers, publishers, and artists. But when artists do it to other artists, there’s no excuse for that. I'm mad!

'Cause you know sometimes words have two meanings

Judge Klausner agreed to a point with California's contention: that if you listen really hard, there are indeed similarities. Klausner, in his opinion allowing the case to proceed to trial, said it was up to a jury to decide Led Zeppelin's contention "that the descending chromatic bass line is a centuries-old, common musical element not entitled to protection."

"While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure," the judge ruled, adding: "Additionally, the descending bass line is played at the same pitch, repeated twice, and separated by a short bridge in both songs."

Page, who is expected to testify, said in a court declaration that although Zep had played in the same venues with Spirit, he never heard Spirit play the song "Taurus"—meaning it was impossible for him to have ripped of the song.

"Prior to hearing a recording of Taurus in 2014 in connection with this matter, I had never heard Taurus or even heard of it. I am very good at remembering music and am absolutely certain that I never heard Taurus until 2014," Page wrote.

He said the opening to "Stairway to Heaven" wasn't infringement but basic guitar playing.

"The beginning of 'Stairway to Heaven' includes a descending chromatic line chord progression and arpeggios, over which I played an ascending line. I consider descending chromatic lines and arpeggiated chords basic skills learned by any student of the guitar. Certainly, as a guitarist, I was aware of descending chromatic lines and arpeggios long before 1968," Page wrote.

Robert Plant, who wrote the song's words, said in a court declaration that "I have no recollection of hearing the song 'Taurus,' either live or on a recording, prior to hearing a recording of Taurus in 2015 in connection with this matter. It has no lyrics and has nothing to do with my lyrics for 'Stairway to Heaven'," he wrote. (PDF)

The suit seeks some $40 million (£28 million) in damages and names Page, Plant, Rhino Entertainment, and others.

The litigation begs two key questions. How will a jury decide the issue and how can a copyright infringement case be brought now, more than four decades after "Stairway to Heaven" debuted? Usually, there's a three-year statute of limitations.

But the US Supreme Court, in a case concerning a copyright infringement action over the movie Raging Bull, ruled in 2014 that a nuanced legal concept called "laches" does not automatically apply to copyright litigation. ("Laches" means an unusual delay that prejudices the opposing side. Or, you "slept on your rights.")

What's more, Judge Klausner wrote, California's trust "brought suit within the three-year retrospective statute of limitations, as Defendants released a new, remastered version of 'Stairway to Heaven' in 2014."

The trial comes a year after the "Blurred Lines" trial. A jury decided that Robin Thicke and Pharrell Williams should pay $7.4 million for infringing "Got to Give It Up" by Marvin Gaye.

Like the "Blurred Lines" lawsuit, which a judge reduced to $5.3 million in damages, the "Stairway to Heaven" case is about similar notes. Like in the "Blurred Lines" case, the jury in the Zep litigation is expected to be treated to recorded performances of the actual sheet music on deposit with the US Copyright Office.

Yes, there are two paths you can go by

James Sammataro, a Miami entertainment lawyer with Stroock & Stroock & Lavan, said in a recent telephone interview with Ars that the "nuanced question" before jurors boils down to whether Zep copied too much of "Taurus."

"As a practical matter, this is a dangerous case to bring to jurors," he said. "Ears don't lie."

Several experts will testify on both sides about whether there is any infringement. Lawrence Farrara, a music professor at New York University, said in a court filing (PDF) that the chords at issue are generic and have been in music for centuries.

"...these chord progressions in "Taurus" and "Stairway" are not only centuries old, but are commonplace musical devices even now, sometimes termed "minor line cliché" in jazz theory books, and are found in numerous well-known popular musical works that predate "Taurus." My Report demonstrates that ending the progression one chord short of the "Lament" is found in popular musical works that predate "Taurus" such as "Cry Me a River" (1963 Davey Graham), "The Meaning of the Blues" (1957 Julie London), "Michelle" (1965 The Beatles), and "How Insensitive" (1965 Astrud Gilberto).

Erik Johnson, a musician and professor the University of the Arts, said in a court filing on behalf of the California trust:

If "Stairway to Heaven" is stripped down to the bare elements that received songwriting credit, the listener is left with two parts: [1] an arpeggiated guitar part, the signature element, which is substantially the same as the signature guitar element in "Taurus;" [2] a vocal melody that bears significant resemblance to the harpsichord in "Taurus," followed by a series of riffs, chord progressions, and solos.

All of which begs a simple question: What's a jury to believe?

"How close does a song have to be in order to be infringement? I agree that they sound similar," William Hochberg, an intellectual property attorney with Greenberg Glusker, told Ars in a recent telephone interview. "I don’t think it's a shoo-in by any means for the plaintiff. It's a crapshoot."

There's been some discussion about a settlement, but so far it seems a trial is inevitable unless there's an 11th-hour deal.

You be the jury.



