A recent lawsuit alleged that one of the top-selling rock acts of all time stole a piece of its signature song from another songwriter. Led Zeppelin’s “Stairway to Heaven” (1971) opens with a “riff” (a progression of chords) that the plaintiffs claimed was lifted from a 1967 song “Taurus” by the band Spirit. But the jury sided with Led Zeppelin and found that there was no infringement.
If the jury had sided with the plaintiff, it would have had to carve out the value of the riff that only forms part of the song. BVWire asked Michael Pellegrino (Pellegrino & Associates), a valuation expert (and musician) who specializes in intellectual property, for some insights into some of the thoughts behind how this would have been determined.
Tricky process: “Apportioning value in a song is tricky as many songs share common themes,” says Pellegrino, the author of BVR’s Guide to Intellectual Property Valuation. “For example, there was also some degree of common elements to ‘Stairway to Heaven’ in the ‘Gilligan’s Island’ theme song (check out Little Roger & The Goosebumps parody of ‘Stairway to Gilligan’ which got them sued by Led Zeppelin years ago). Some degree of overlap is common when you consider that there are only 13 notes in the musical scale. In fact, many punk bands make a good living playing only four or five power chords in different orders. When I was learning how to play guitar, Green Day was always an easy band to cover for that reason.”
The jury’s task would have been difficult because “Stairway to Heaven” “is an epic song,” Pellegrino points out. “The song is about eight minutes in length, but the value of a song is not necessarily the sum of its musical parts. What is it that makes ‘Stairway to Heaven’ what it is? Is it the opening progression, the lyrics, John Bonham’s drum entrance, Jimmy Page’s guitar solo, Robert Plant’s soft entrance or his hard finish, the crescendo as the song progresses, or Heart’s amazing cover of it at the Kennedy Center in December 2012? There is no clear cut formula and the answer depends on the context and perspective. The easiest apportionment factor one might consider is to allocate the duration of the accused portion of the song to its total length to arrive at a percentage. So of the accused portion of the song is 60 seconds on a 180 second song, then the apportionment would be a straight 33% allocation (60 seconds/180 seconds). This is likely an approach a jury might consider because it is easy to contemplate and calculate.”
Complicating factors: However, this percentage approach can have problems, he says. “What if the accused song has a higher degree of production? In that case, such an approach may not be appropriate. For example, when Mutt Lange produced Def Leppard’s “Hysteria” album and had the band record the chord progressions, he had the band record each individual guitar string as a separate track! So recording a simple D cord involved four tracks for the notes in the strummed notes in the chord (D, A, D, F#). While the notes are the same, the effect is acoustically different, producing a more lush sound. Of course, it is more expensive to record a D chord in four tracks and mix them later as opposed to a single track capturing all notes ringing together.”
Pellegrino says the other complicating factor is that copyrighted elements of a song can effect different emotive responses on the listeners. “For me, not being affiliated with the case, but having listened to both songs, I can clearly hear some degree of familiarity in elements of both songs,” he says. “However, I was never a personal fan of the beginning of ‘Stairway to Heaven.’ For me, the song gets better as it progresses and I like the second half of the song better than the first half, where there is no reasonable degree of overlap between the two songs. As such, the value of the song to me does not rely on Spirit’s disputed elements of the song. Thus, Spirit’s contribution, if any, to my enjoyment in listening to ‘Stairway to Heaven’ is minimal. Yet different listeners may have opposing views.”
Expect to see more cases such as this—which is part of a crop of copyright infringement cases triggered by the Supreme Court’s Raging Bull case. In fact, the Led Zeppelin case was filed just two weeks after the decision in Raging Bull.