15Perry and her collaborators for copying a Christian
rap song in her 2013 hitDark Horse. The assembled
composers shook their head in agreement that the
jury of laypeople just hadn’t understood the differ-
ence between sounding similar and actually copy-
ing unique combinations of notes.
Yet there’s hope in Malibu, both for the break-
fasting composers and for today’s top pop stars.
Another battle, over whether Led Zeppelin’s
Stairway to Heavenwas a ripoff, may soon tilt the
tables in favor of creators of new music by limit-
ing protection for their predecessors. At issue is
whether an antiquated copyright system based
on sheet music for most of the 20thcentury can
be weaponized against artists of the era because
their record companies consistently failed to put
every single note of their recordings onto paper.
ABloomberg Businessweekinvestigation this year
found that potentially unprotected riffs include
famous guitar, sax, and keyboard solos from rock
and soul treasures. Lynyrd Skynyrd’sFree Bird,
with an album version running more than nine
minutes, has an initial deposit copy—the draft of
sheet music that stands as a copyright application
before 1978—of only eight lines and no registration
that includes its guitar solos.
Such a shift in thinking about intellectual prop-
erty has the eager backing of the music industry
and the Trump administration, which has formally
taken Led Zeppelin’s side. From a business per-
spective, what the big record companies and music
publishers are seeking in theStairwaycase is to
blow up copyright protection for the oldies, includ-
ing the most iconic rock and soul songs, in favor of
music by newer, more lucrative acts.
On Sept. 23 a rare 11-judge panel of the Ninth U.S.
Circuit Court of Appeals in San Francisco will hear
arguments in theStairwaycase, which Led Zeppelin
originally won in a 2016 trial. The core question:
Will the court back the music industry’s argument
that songs registered before 1978 should be afforded
only “thin” protection limited to the bare notes on
often cursory sheet music that songwriters’ record
companies deposited—hence “deposit copies”—at
the U.S. Copyright Office? Until 1978 federal copy-
right law required composition deposits on paper
and didn’t allow recordings. The song that Led
Zeppelin is accused of lifting, an obscure instru-
mental,Taurusby the band Spirit, was registered
in 1967 as barely one page with 124 notes.
The legal liberalization the music companies
are advocating would give current creators freer
rein to cannibalize familiar sounds with impunity.
Yes, composers need copyright protection, “but
they also need copyright law to let them create
new music incorporating ideas from the vast cul-
tural library of past musical works,” the Recording
Industry Association of America and the National
Music Publishers’ Association wrote in a joint
amicus brief. “Authors, including composers, must
and should use unprotectable elements created by
those creators coming before them.”
To the owners of the old copyrights, the indus-
try position reads like an attempted heist. “They
want to legalize copyright infringement,” says
David Pullman, an investor in music rights who’s
a plaintiff in one of the biggest pending cases. He
and other rights holders to Gaye’sLet’s Get It Onare
demanding more than $100 million for the alleged
theft of the song for Ed Sheeran’s hit Thinking Out
Loud. That New York litigation, in which Sheeran
denies any copying, is suspended pending the out-
come of the Stairway appeal.
Pullman, who’s best known for turning David
Bowie’s royalty flows into “Bowie bonds” in 1997,
takes a long and gimlet-eyed view of the business.
“The publishing and record companies would love
to be able to have stars infringe, because they can
make more money this way,” he says.
The Trump administration’s decision to join the
fray underscores the stakes. A U.S. Department of
Justice lawyer will even make arguments at the
hearing, using time allocated to Led Zeppelin’s
legal team. The government’s brief argues that even
the least complete deposit copies should at a mini-
mum include basics such as melody and that “fail-
ure to incorporate elements such as these in the
deposit copy would reflect a failing on the part of
the copyright owner or its agent.”
The government stance doesn’t fully reflect the
messy historic truth about how music and copy-
right deposits were made during a golden age of
pop music. Songs were often composed by record-
ing artists with no knowledge of musical notation
and then transcribed by record company clerks
for the registrations. Those deposit copies capture
only a fraction of what’s on the studio recordings.
As a result of the sketchy sheet music, there are
unregistered bits of song that could be up for grabs
if the courts restrict pre-1978 compositions’ protec-
tion to their deposit copies. The deposit copy of
Gaye’s Let’s Get It On only has chords, lyrics, and
melody, making it conceivable that someone could
record a karaoke track identical to the record and
never infringe the song’s copyright—because all the
other backing notes and sounds such as the bass
line, wah-wah guitar, backup singing, strings, and
horns aren’t present in the sheet music.
Even more lucrative possibilities? Commercial
exploitation for ringtones, ads, video games, or“Record
companies
would love to
be able to have
stars infringe,
because they
can make more
money this
way ”● Annual revenue of
the American Society
of Composers, Authors
and Publishers2015 2018$1.2b0.0◼ BUSINESS Bloomberg Businessweek September 23, 2019