CMU Daily 10.03.20: Ninth Circuit upholds Led Zeppelin's win in Stairway To Heaven copyright case, Coachella set to postpone as COVID-19 continues to impact live music industry

Ninth Circuit upholds Led Zeppelin's win in Stairway To Heaven copyright case
The Ninth Circuit appeals court in the US has upheld the original ruling in the big Led Zeppelin song-theft case, concluding that the band's classic 'Stairway To Heaven' did not infringe an earlier work called 'Taurus'. The judgement confirms that in cases relating to pre-1976 music, the copyright in songs only extends to what was written in the sheet music registered with the US Copyright Office. It also rejects a thing called the 'inverse ratio rule'.

Led Zeppelin, as you may remember, were sued by the estate of songwriter Randy Wolfe, aka Randy California, who had written the song 'Taurus' for his band Spirit.

The estate alleged that Led Zep had heard Spirit perform 'Taurus' before writing 'Stairway', and that the latter infringed elements of the former. But in 2016, a jury ruled that, while Led Zep members probably had heard 'Taurus' before writing 'Stairway', the two songs were not similar enough to constitute copyright infringement.

The Wolfe estate appealed the following year, criticising some of the decisions made by the judge who oversaw the original case, including his refusal to allow recordings of the two songs to be played in court, and how he briefed the jury before they made their decision.

In 2018 the Ninth Circuit accepted some of the estate's criticisms, overturning the original ruling and ordering a retrial. But before that could happen, the Ninth Circuit announced it would actually consider the case again, this time en banc, meaning a bigger panel of judges would take part. Both sides in the dispute had requested an en banc hearing, arguing that some key questions about American copyright law sat at the heart of the case.

It's the Ninth Circuit sitting en banc that have now rejected the estate's criticisms of the judge in the original jury case and reinstated that court's ruling in Led Zepp's favour.

Among the copyright technicalities discussed in the ruling is one that has come up in other American song-theft cases where someone is accused of ripping off on older work. Under US copyright law, the principle goes, songs are only protected in the form they are registered with the US Copyright Office. And for older works, only the sheet music representation of the song could be registered, so it's the sheet music representation that matters.

This means that, if other elements were added to a song in its original recording, those other elements are not protected by the song copyright (the recording itself would be separately protected, but those elements would not be considered part of the song for copyright purposes). Which is annoying if the elements of your song that a third party has ripped off are in the original recording but not the original sheet music.

That's why, in the original case, the judge declined to allow the Wolfe estate to play a recording of 'Taurus' in court. That decision, the estate argued, impacted on the jury's subsequent decision that 'Taurus' and 'Stairway' were not sufficiently similar.

However, says the Ninth Circuit en banc, the judge nevertheless was right to not allow the sound recording of 'Taurus' to be played. "The scope of the copyright in the ... work was defined by the deposit copy, which in the case of 'Taurus' consisted of only one page of music", the judge wrote. "Accordingly, it was not error for the district court to decline plaintiff's request to play sound recordings of the 'Taurus' performance that contained further embellishments or to admit the recordings on the issue of substantial similarity".

Another copyright law technicality considered by the Ninth Circuit is called the inverse ratio rule. It's a principle that says that - when weighing up if one song is sufficiently similar to another to constitute copyright infringement - you can consider how strong the case is that the alleged ripper-offer had access to the song they allegedly ripped off. The stronger the case for access, the less strict you need to be in assessing similarity.

If applied sensibly, it's not a stupid concept. For example, it could be used to distinguish the 'Blurred Lines' song-theft case - where Pharrell Williams almost certainly had 'Got To Give It Up' on his mind when he wrote his hit - from the 'Dark Horse' case - where Katy Perry and her collaborators might possibly have heard earlier track 'Joyful Noise' on YouTube. By employing the inverse ratio rule, the similarity between 'Dark Horse' and 'Joyful Noise' would have to be much stronger than in the 'Blurred Lines' dispute.

However, in the original 'Stairway' case, the judge did not explain the inverse ratio rule to the jury before they began their deliberations, much to the annoyance of the Wolfe estate. Because they believe that had the ruled applied, they'd have had a better chance of winning.

Employment of the inverse ratio rule has varied in courts across America. In those courts covered by the Ninth Circuit the rule has been applied in some cases. Although even their use of the principle has been inconsistent. With that in mind, the appeals court ruled that the judge in the original case was correct to not explain this principle to the jury.

Seeking to set a precedent on this matter within their jurisdiction, the appeals court judges wrote: "Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary".

So there you go. Older songs are only protected as represented in the sheet music logged with the Copyright Office. And the reverse ratio rule can fuck off.

There has, of course, been concern in the music community that the American courts have, of late, become too willing to see copyright infringement where you have two songs that share common musical elements. The 'Blurred Lines' case and the still-being-appealed 'Dark Horse' litigation are stand out judgements in that domain.

The original ruling in the Led Zep case was, therefore, welcomed by many in the music community, given it swung the other way. For those people, this decision of the Ninth Circuit to now uphold that original ruling will be good news, as is the court's various decisions on technicalities like the inverse ratio rule.

Jeff Brown, an IP and entertainment attorney at US law firm Michael Best, tells CMU that "the appellate ruling is significant - not only for Led Zeppelin and the decades running rock debate over whether Led Zeppelin's 'Stairway To Heaven' opening riff copied Spirit's song 'Taurus' - but for the impact this ruling will have on future copyright infringement claims involving songs and other creative works".

As well as rejecting the inverse ratio rule which, Brown says, "had the effect of establishing a lower burden to prove infringement of a popular work", the appeals court, he then notes, also stated that "we have never extended copyright protection to just a few notes - instead we have held that 'a four-note sequence common in the music field' is not the copyrightable expression of a song". Conclusions like that, Brown adds, means "this ruling might serve to tame plaintiffs who had taken encouragement from the 'Blurred Lines' decision".

Although, it has to be said, this particular rock n roll copyright squabble may not yet be at an end. According to Law360, the estate's lawyer, Francis Malofiy, has said that he and his client are "evaluating our paths forward", adding "this fight is by no means finished".

"The en banc panel decision is contrary to the law", Malofiy stated yesterday, "and enforces incoherent and imaginary technicalities instead of allowing the songs at issue to be compared on the merits. Copyright law suffers as a result of this opinion".

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NMPA speaks out again as streaming royalty rate appeal gets to court
As efforts to appeal the US Copyright Royalty Board ruling on streaming royalties heads to court this week, the boss of America's National Music Publishers Association has set out his organisation's grievances against Spotify et al in an op-ed piece for Billboard.

What royalties streaming services pay to songwriters and music publishers in the US is constrained by a compulsory licence that covers the mechanical copying of songs. It means that, while in other countries publishers and song right collecting societies have sought to increase their share of streaming money through direct negotiations with the digital firms, in the US everything is impacted by the decision of a committee of judges.

Those judges form the Copyright Royalty Board, which last year concluded a review of digital royalty rates by increasing the share of streaming revenue to be allocated to the song rights. The increases will occur over a number of years until 15.1% of streaming monies go the song, up from an old rate of 10.5%. That will bring the US rate more or less in line with what has been negotiated by the publishers in many other countries.

However, various streaming services, including Spotify and Amazon, are appealing the CRB's judgement. That has, of course, pissed off the American songwriter community and music publishing sector big time. In his op-ed piece yesterday, NMPA boss David Israelite wrote: "Songwriters: This week, Spotify and Amazon are quite literally taking you to court. A great deal of the business of how much you get paid happens in a room a few blocks from [US Congress]".

Spotify has always insisted that it doesn't actually object to the rate increase, but that it has issues with other aspects of the compulsory licence. The NMPA disputes those claims, pointing out that Spotify did object to a royalty increase in earlier stages of the CRB rate review.

Israelite wrote yesterday: "When their appeal was announced last year, Spotify in particular rushed to assure songwriters that it wasn't really trying to discard your raise and instead they wanted to 'clarify elements' of the decision and that Spotify indeed did think songwriters 'deserved to be paid more'. This is directly contradicted by the case they put on in 2017 which proposed actually cutting songwriters' old rates. Ultimately, they hope to cut what you are paid by a third".

Although most major digital music firms - with the notable exception of Apple - are involved in the appeal, Spotify has been on the receiving end of the most outrage from the songwriter and publisher community. That was apparent from Israelite's piece, in which he dismissed the market-leading premium streaming firm's other efforts to placate songwriters.

He went on: "What's arguably worse than the backroom attempts to slash songwriters' royalties through the court system are the hollow PR gimmicks that Spotify is using to distract from what they're actually doing behind closed doors. Just recently the streaming giant rolled out its beta version of Songwriter Pages. While it is always a good thing to give songwriters more credit, this pales in comparison to attacking songwriters in what matters most - valuing their songs".

"Even more bold was their Secret Genius stunt", he added, "which sought to honour the creators behind the music with parties and playlists. They even hosted global songwriting camps throughout the year called Songshops. What they didn't advertise was they were actively fighting to devalue the works coming out of those camps".

His article later concludes: "Ultimately these services rely on what you - songwriters - think of them. You need them, but they need you more. When you're invited to parties, featured on billboards and encouraged to buy in to the hype, remember that millions of dollars are being spent on their lawyers to fight your raise, instead of paying you for your music".

You can read the full article here. We await to see what specific arguments each side now presents in court.

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Warner Music hires Jay Mehta as new India MD
Warner Music has announced that it is expanding its presence in India with the hiring of Jay Mehta as its new Managing Director for the territory. He joins from Sony Music India, where he has been Director Of Digital Business since 2016.

"Music is a way of life here in India, a valuable pillar of our culture", says Mehta. "There's so much talent hungry for opportunity, and I'm looking forward to signing and serving a wide diversity of local artistry. India's growing music audience will also benefit from this move, as we not only amplify our new rising stars, but Warner's global superstars as well".

Warner's EVP for Eastern Europe, Middle East, Africa and India, Alfonso Perez-Soto, adds: "With a dynamic and vibrant music scene, India is a natural place for Warner to grow presence. It's a market that's increasingly embracing international repertoire, as well as developing its own music scene beyond the traditional dominance of Bollywood. Jay is a brilliant creative and commercial leader and we all look forward to supporting him and his team as he spearheads our efforts in this growing region".

As well as India, Mehta will also oversee activities in Afghanistan, Bangladesh, Bhutan, the Maldives, Nepal, Pakistan and Sri Lanka. Prior to moving into the music industry with his role at Sony three and a half years ago, he previously worked in the radio and telecoms industries.

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Coachella set to postpone as COVID-19 continues to impact live music industry
The Coachella festival is set to be pushed back to October as the spread of the coronavirus COVID-19 continues to have a significant impact on the American live music industry. The postponement follows last week's cancellation of this year's South By Southwest showcase festival.

Coachella 2020 is due to take place over two weekends in April. AEG's Goldenvoice, the promoter of the event, is yet to make any official announcement, but staff there are apparently liaising with the agents of artists that are due to play, discussing the possible shift to October. Sister event Stagecoach, also due to take place in April, is also likely to be postponed.

An increasing number of music events are being cancelled or postponed in the US as efforts increase to contain the spread of the virus, which results in mild cold-like symptoms for most people, but can be fatal in some cases.

In Miami, where this month's Ultra Music Festival was cancelled last week, the accompanying Winter Music Conference has now also been postponed to a date yet to be confirmed. The festival and the conference are key components of the wider Miami Music Week programme.

Back in Austin - where city officials last week forced SXSW to cancel - it remains to be seen how many of the unofficial events that were due to take place alongside the festival and conference go ahead. The city's public health department is also issuing guidance to the organisers of those unofficial events as part of its wider bid to contain the virus.

Of course, the cancellation of shows, festivals and conferences is by no means confined to the US, as the virus spreads elsewhere in the world, especially in Europe. Some European governments have put restrictions on any events over a certain capacity, and in Italy the whole country is now basically on lockdown, with all public gatherings banned.

In the UK, the government remains cautious of introducing similar measures, despite the virus starting to spread here. It's expected that the number of cases of COVID-19 in the UK could increase rapidly in the next two weeks, which might require the government to instigate restrictions on large-scale events. But ministers do not yet feel that such measures are required.

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Biffy Clyro announce "forward-looking" new album, A Celebration Of Endings
Biffy Clyro have announced that they will release their latest album, 'A Celebration Of Endings', later this year. Along with the news, they've also pumped out new single 'End Of'.

"This is a very forward-looking album from a personal perspective and a societal perspective", says frontman Simon Neil. "The title is about seeing the joy in things changing, rather than the sadness. Change means progression and evolution. You can retain everything you loved before, but let's lose the bad shit. It's about trying to take back control".

The album is set to be released on 15 May, and tour dates are due to be announced imminently. Listen to 'End Of' here.

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Idlewild announce 25th anniversary tour
Idlewild have announced that they will tour later this year to mark their 25th anniversary, playing songs from across their nine albums.

"When Rod [Jones], Colin [Newton] and I met and formed Idlewild in 1995, I don't suppose any of us expected that we'd still be playing shows and recording songs together 25 years later", says frontman Roddy Woomble.

"It feels great to get the chance to celebrate the records and songs we have made together over the last quarter of a century with our fans", he adds, "and these very special concerts will feature all the band members who have been part of the Idlewild family and story since 1995".

"Music is a flowing art form and Idlewild have adapted and changed as time dictated in a natural way", he concludes.

Tickets for the shows go on general sale on Friday. Here are the dates:

4 Nov: Cardiff, Tramshed
5 Nov: London, Electric Brixton
9 Nov: Manchester, Ritz
10 Nov: Dublin, Button Factory
11 Nov: Belfast, Empire
14 Nov: Edinburgh, Usher Hall

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DEALS

Australian singer-songwriter Amy Shark has signed a new global management deal with Red Light. "We are absolutely THRILLED to have Amy Shark join the Red Light Management team", says company president Will Botwin. "Amy is an extraordinary songwriter and singer and we are looking forward to helping develop Amy's career further on a global scale".

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DIGITAL & D2F SERVICES

Spotify has announced details of its latest initiative to support emerging talent. Called Radar, the programme will see the streaming firm select an artist or artists in a number of key markets and provide them with marketing and editorial support. In the UK all that Radar love will go to rap duo Young T & Bugsey.

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RELEASES

Dua Lipa has released a workout video to accompany her new single 'Physical'. Like Jane Fonda, but with more lewd gestures. Her new album (Dua Lipa, not Jane Fonda), 'Future Nostalgia', is out on 3 Apr.

Warpaint's Jenny Lee Lindberg has released a cover of Fugazi's 'I'm So Tired', with a seven-inch version being pressed up for Record Store Day. "I love, admire and respect Fugazi with my whole heart, always have", she says. "The sentiment of 'I'm So Tired' is deeply moving and extremely relatable. It was such a pleasure and a pleasant surprise I was able to pull this off. I hope I did it justice, it sure was fun - and that's the point of it all".

Enter Shikari have released new single 'The King'. Frontman Rou Reynolds explains: "'The King' is about the fervent, rushed desire we as humans often have for revenge. It's almost a lesson in patience and forgiveness. Not just lyrically, but also because of how much of a struggle this boisterous track was to make. We're glad we stuck with it and tamed this beast and can't wait to play it live".

Nightwish have released new single 'Harvest'. Their new album - 'Human. :II: Nature.' - is out on 10 Apr.

Flohio has released another new freestyle, this one titled 'Disengaged'.

Hinds have released new single 'Come Back And Love Me'. Says guitarist Carlotta Cosials: "[This] is the most romantic song we've ever done. We had real doubts about which song of the album should be the next single and when we told our team we wanted this one they all freaked out cos nobody chooses ballads for a single. Then I thought that we never really followed any industry rule so I think we will be OK".

Yves Tumor has released new single 'Kerosene' from upcoming album 'Heaven To A Tortured Mind', which is out on 3 Apr.

MO have released new single 'Going Out Of My Way' featuring Mr Eazi.

Kelly Moran has released the latest track that appears on a new compilation called 'Ultrasonic'. Said track is called 'Sodalis'. The album is full of experimental pieces based on field recordings of bats that were made by composer Stuart Hyatt. Other contributors to the record include Eluvium, Mary Lattimore, Sarah Davachi, Jefre Cantu-Ledesma. The compilation is out on 1 May through Temporary Residence.

Haring has released new single 'Community'. His new album, 'Blurred', is out on 27 Mar.

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GIGS & TOURS

BTS have announced that they will play two nights at Twickenham Stadium in London on 3-4 Jul. Tickets will go on pre-sale to the band's fanclub on 18 Mar.

Deadmau5 has announced that he will bring his 'Cube v3' show to London's Brixton Academy on 26 Jun. Tickets go on sale on Friday.

Ghostpoet has announced that he will tour the UK and Ireland in November. His new album 'I Grow Tired But I Dare Not Fall Asleep' is out on 1 May.

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Foals offer corona-busting hand sanitation advice in Wash Off video
While the live music industry is struggling with the ongoing effects of coronavirus panic, others have spied opportunities. Opportunities to help. To selflessly help. Because Foals have just remembered that their latest album has a song on it called 'Wash Off', which is exactly what everyone needs to be doing.

Taken from last year's 'Everything Not Saved Will Be Lost Part 2', the tracks is not really about washing at all, let alone washing hands. However, it's new video very much is, showing viewers on a loop the 20 second process necessary to properly wash your hands and rid them of COVID-19.

The unrelated lyrics are also shown as the song plays, but don't look at those because it will distract you from the important educational information being offered in the visuals. Learn to wash your hands and stop making everyone sick.

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