RIAA Court Filing In Stairway To Heaven Case Warns Against *OVERPROTECTION* By Copyright

Here's one you don't see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over "Stairway to Heaven" that we've been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin's "Stairway" did not infringe on the copyright in the Spirit song "Taurus." While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case -- in part to fix the 9th Circuit's weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I've been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it's actually kind of an important way for most musicians to develop), and if that's seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And... that's actually what it's done. The RIAA and the NMPA (National Music Publisher's Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360's Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance itsrules to prevent both over- and underprotection. Composers' intellectualproperty must be protected, but new songs incorporatingnew artistic expression influenced by unprotected, pre-existing thematicideas must also be allowed. The panel opinion badly overprotects,and in doing so is inconsistent with other federal appealscourt decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can't believe I'm saying this) make the same argument I've been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panelallowing findings of infringement based on the use of uncopyrightableelements. Most compositions share some elements with pastcompositions-sequences of three notes, motifs, standard rhythmicpassages, arpeggios, chromatic scales, and the like. Likewise, allcompositions share some elements of "selection and arrangement"defined in a broad sense. The universe of notes and scales is sharplylimited. Nearly every time a composer chooses to include a sequenceof a few notes, an arpeggio, or a chromatic scale in a composition,some other composer will have most likely "selected" the same elementsat some level of generality.

To keep every work from infringing-and to keep authors frombeing able to claim ownership of otherwise unprotected elements-this Court has stressed that selection and arrangement is infringedonly when there is virtual identity between two works, not looseresemblance. The same principle should be recognized for music.

The brief goes into more detail -- again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) -- on why it's crazy to argue that non-protectable works should be analyzed in determining if there's infringement:

The panel opinion concluded that the instruction nonethelesserred, on the theory that such common elements could still be protectedif "used in combination with other elements in an originalmanner," slip op. at 20, as a form of creative "selection and arrangement,"id. But all compositions will share some elements of "selectionand arrangement," defined in a broad sense, with some earliercompositions. To prevent nearly every new composition being atrisk for liability, copyright claims based on "original contributionsto ideas already in the public domain," Satava v. Lowry, 323 F.3d805 (9th Cir. 2003), are seen as involving a "thin copyright that protectsagainst only virtually identical copying." Id. at 812; see alsoEts-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003)("When we apply the limiting doctrines, subtracting the unoriginalelements, Ets-Hokin is left with . . . a 'thin' copyright, which protectsagainst only virtually identical copying."); Rentmeester v. Nike,Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has longrecognized this principle in claims involving visual art that allegedlycreatively combines public domain elements, as with the sculpturesin Satava or the photographs in Ets-Hokin and Rentmeester.The same should apply to music.

I also agree with the RIAA in saying that the "inverse ratio" rule is incredibly stupid. This is the rule adopted by some courts that the amount of "substantial similarity" necessary to show infringement decreases with the amount of "access" the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create worksthat are strikingly similar to older ones, nearly all composers enjoya striking level of access to a vast range of works: They hear themonline, on the radio, at concerts, at home, and elsewhere. Indeed,they may hear them without ever seeking them out-played asmood music in elevators, supermarkets, and restaurants, or as incidentalmusic in a film or in a television or radio commercial. Yeteven if hearing the songs this way counts as a "high degree of access"(itself a vague concept that juries would have a difficult timeapplying), that should not allow the creators of new works to besued under a "lower standard of proof of substantial similarity,"

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner thatthe jury should not be allowed to determine substantial similarityby comparing Stairway to Heaven to Spirit's sound recording ofTaurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concludedthat, because of this, it was better for the jury not to hearthe sound recording at all, especially since hearing the sound recordingwould do vanishingly little to help the jury determine anythingelse (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin's Jimmy Page listening to the recordings "to evaluate his demeanor." As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that "allowingthe jury to observe Page listening to the recordings would haveenabled them to evaluate his demeanor while listening to the recordings."Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus(which he had already recently heard when preparing for thetrial, III ER 502). The jurors are watching his demeanor, an unusualthing for people to do when they are listening to a song togetherwith someone. What would they be looking for on his face thatwould in any way bear on the question whether he had heard thesong nearly 50 years before, in 1967 to 1971? Is there some supposedlytell-tale facial expression that captures the reaction, "Yes, Ihad heard that song back then"?

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page -- and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.