But not all musical acts are so lucky.
It’s a celebration day for Led Zeppelin, whose latest trip to the legal gallows pole was far kinder to the classic hard-rock band than no quarter. On Monday, the Ninth Circuit Court of Appeals affirmed a 2016 trial-court decision that the opening guitar riff of “Stairway to Heaven,” Led Zeppelin’s most famous song, was not so similar to the song “Taurus” by Spirit as to infringe on the latter’s copyright. (Compare for yourself here.) Now Led Zeppelin’s surviving members can relax down by the seaside, or take a trip over the hills and far away.
But while Led Zeppelin has been exonerated (though still guilty of other “borrowing,” in my view), this won’t be the last case of its kind to make it to court. It certainly wasn’t the first. And while there may be something inherently strange about trying to prove legally that acts of theft can be found in a musical setting, other potential means of redress tend to prove ultimately unsatisfactory.
It’s true that much of popular music exists in a kind of permeable membrane, as musicians play off, inspire, compete with, and — yes — steal from one other. John Lennon considered himself one of “those people . . . who like to know where licks and things come from,” in part because he was “always nicking little things” himself. He did so while analyzing a song by Electric Light Orchestra, a band that quite consciously mimicked the musical style of the Beatles, though crucially without ever stealing from them outright. At its best, this kind of interplay can be a kind of compliment between acts and can improve the quality of the music that ends up in listeners’ ears.
Things get harder, though, when the similarity passes into larceny. But it can be hard to prove legally actionable musical theft. Which is why the successful lawsuits of this nature usually try to prove that bands accused of such copyright infringement would likely have been aware of the song they are being accused of stealing from. This was part of the case that the estate of Randy California, who wrote “Taurus” for Spirit, tried to make against Led Zeppelin. And it is true that “Taurus” did come first (1968, versus 1971 for “Stairway”) and that Spirit and Led Zeppelin did cross paths before “Stairway” was written. But the Ninth Circuit Court did not accept that evidence as dispositive.
Not all accused acts are so lucky. Perhaps the most famous suit like this pitted another former Beatle, George Harrison, against the estate of songwriter Ronnie Mack. Harrison was accused of lifting the melody of the Chiffons’ version of Mack’s song “He’s So Fine” for his own 1971 hit “My Sweet Lord.” The case went to trial, and because Harrison admitted to awareness of the Chiffons’ song despite still denying he had it in mind when he wrote his, the case’s judge found him guilty of having infringed copyright “subconsciously.” (Harrison later wrote “This Song,” a humorous ditty about the whole affair.) Similarly, in 2018, the same Ninth Circuit that cleared Led Zeppelin’s name affirmed the guilt of Robin Thicke and Pharrell Williams for infringing on Marvin Gaye’s “Got to Give It Up” with their song “Blurred Lines.”
Some accusations are much harder to contest. Vanilla Ice pretty quickly gave up his unconvincing defense that the bassline of “Ice, Ice, Baby” noticeably differed from that of Queen and David Bowe’s “Under Pressure.” And many acts have tried either to head off or to minimize legal damage by appending songwriter credits. Parties guilty of this include Radiohead (who aped the Hollies’ “The Air That I Breathe” with “Creep”), the Flaming Lips (whose “Fight Test” both melodically and lyrically echoes Cat Stevens’s “Father and Son”), Oasis (accused of stealing from Neil Innes’s “How Sweet to Be an Idiot” in “Whatever”), the Verve (who in “Bittersweet Symphony” quite obviously borrowed from an orchestral version of the Rolling Stones’ “The Last Time”), and Rod Stewart, who had to credit Bob Dylan’s “Forever Young” on his own song . . . “Forever Young.” (Sometimes, these things are a bit easier to figure out.) Such instances are much harder to dispute, and the accused tend to lose.
This is not to say there aren’t counterexamples and gray areas. John Fogerty, former frontman of Creedence Clearwater Revival, was able to win a copyright lawsuit against his former record company, which argued that he was infringing on . . . himself (as a member of CCR). These and other strange cases point to the legal oddity of court-based musical analysis. Music is a complicated thing. Musicians tend to listen widely and don’t remember where everything they’ve heard comes from. Fear of unoriginality can inspire musicians to greater heights. Or it could inspire paranoia, as it did for Harrison, who found his creativity temporarily stalled in the aftermath of his own failed case. And, in the end, there are only so many notes and chords to work from if you want your music to be anything close to accessible. If you draw things out far enough, all music can sound the same, as the Australian comedy group Axis of Awesome proved with their famous “Four Chord Song.”
But as imperfect as the courts are for sorting such things out, it’s hard to think of a better alternative. You could argue that listeners, critics, and the course of time would eventually sort the originals from the stealers. But that would be little comfort to a musician watching millions of dollars that he feels he’s owed a share of accrue to some thieving act. (But then what of the opportunists without a real case who see money to be made?) So suits like this are likely to ramble on. How many more times we’ll see them in court, no one can say.
Editor’s note: This article originally confused the band, Spirit, and the song, “Taurus.” It has been corrected since its original publication.