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THE BOTTOM LINE The second round of theStairway to Heaven
copyright infringement trial will get under way on Sept. 23—with
potentially momentous consequences for composersentire new songs would be a logical next step.
For now, who could own what is in flux. The gov-
ernment addressed the possibility of orphaned
riffs in itsStairwaybrief, saying the law change in
1978 grandfathered in any protectable, original ele-
ments of older songs that hadn’t been in deposit
copies. Their owners need only register them to
gain protection. In practice, it’s unclear whether
any of those famous (and overplayed) riffs, such
as the Eagles’Hotel Californiaguitar solos or the
Doors’ keyboards fromRiders on the Storm, would
still count as original if registered today and used
in court to challenge an infringement.
But isn’t it far-fetched that someone would try
to cash in on, say, an unregistered but totally famil-
iar Santana solo?
Nope. In Malibu at the Composers Breakfast
Club, it’s easy to find music makers drooling at the
possibility that some of the most familiar tunes of
the 20th century will be unprotected. For Malte
Hagemeister, 46, a greenlight from theStairway
case to use old riffs would make it easier for him to
create lucrative tunes and jingles. “The ad world
loves recognizable pieces,” Hagemeister says.
“You make a piece with an energetic beat and an
element that everybody knows, quote it, and you
can then license it to advertising.”
This doesn’t mean that Hagemeister and his
breakfast club colleagues want to cheat or steal.
The creative process—and its history—is more com-
plicated than that. “The Beatles got inspired by so
many black artists, then came hip-hop, then every-
body got sued. It’s just fascinating that we all stand
on the shoulders of giants,” he says.
What’s needed, Hagemeister says, is a copy-
right overhaul that recognizes the need for creat-
ing new works with the old building blocks—just as
the record companies are advocating—but in a way
that fully compensates the giants on whose shoul-
ders he’s perched. Among the barriers is the law
that allows for recording a cover version of a song
and compensating the songwriter but doesn’t pro-
vide a similar license for using small bits of lots of
songs. “There should be a way to divide the bounty
without suing,” he says. “From an artist’s perspec-
tive, it’s beautiful that we have something to pro-
tect our rights of creativity. It is precious, but it’s
gotten too complicated.”
For a taste of the complication, just read
through the docket of theStairwaycase. First there
was the trial. Then last year, a three-judge panel
on San Francisco’s federal appeals court ordered a
do-over of that trial for procedural reasons (which
hasn’t happened). The panel also declared that for
older songs, the deposited sheet music “defines thescope of the copyright.” That ruling set off a second
round of appeals by both sides that led the court
to convene this second, bigger panel that’s poised
to hear the case again.
Court watchers (the hearing will be streamed
live online) will want to home in on the idea of
“thin” copyright protection, which is entwined
with the deposit copy issue. It’s the second half of
Led Zeppelin’s one-two punch. First there are very
few protected notes in theTaurusdeposit copy.
Then at best those notes are simply an arrange-
ment of commonplace elements, such as an
A-minor chord and a descending scale, the gov-
ernment brief argues. “Such a combination is sub-
ject at most to a thin copyright,” the brief says.
Observers will also want to keep an eye on the
Philadelphia lawyer who brought theStairwaysuit,
Francis Malofiy. His response to the government
brief begins, “The Trump Administration’s foray
into this copyright case is an embarrassment that
fails to understand the applicable law for the his-
tory of copyright,” then cites Trump’s bashing the
San Francisco appeals court as reasons the judges
shouldn’t try to legislate from the bench.
Regardless of fireworks, whatever the appeals
judges decide will have immediate ramifications
for the copyright disputes already in courts and
the countless claims being hashed out in private.
The implications for intellectual-property rights
may even go far beyond music, especially if the
judges embrace the idea of “thin” copyright. Until
now, case law shows a similar concept has been
applied to creative works such as sculpture and
computer interfaces, where judges saw limited
combinations of elements possible in, say, a statue
of a woman or the layout of a laptop screen. Under
“thin” copyright protection, such designs could
be protected only from “exact” copying. Apply
the same thin protection to screenplays or video
games, and knockoffs are suddenly a lot easier.
In the music business, the next biggest decision
to come will be theLet’s Get It Onlitigation in New
York federal court. Whereas theStairwaycase is
about ancient rock, this one involves Sheeran,
one of the biggest stars of this century, and the
way music is made today. Between that $100 mil-
lion case and a possible trip for Led Zeppelin to
the U.S. Supreme Court, we may learn soon how
music will be made in the future—and whether
record companies and their big stars will rake in
billions while the aged rockers and their heirs will
be left with a pittance. —By Vernon Silver○ Gaye○ SheeranPHOTOS: JEFF SPICER/GETTY IMAGES; KYPROS/GETTY IMAGES. DATA: AGENCIA NACIONAL DE PETROLEO, GAS NATURAL E BIOCOMBUSTIVEIS BUSINESS Bloomberg Businessweek September 23, 2019