Bloomberg Businessweek June 24, 2019In a little-noticed moment during Led Zeppelin’s Stairway
to Heaven plagiarism trial, a Guitar God inadvertently revealed
that his industry’s most famous (and valuable) tunes were up
for grabs. It was June 2016, on the third day of the proceed-
ings in Los Angeles federal court, when Jimmy Page took the
stand. He faced examination by attorney Francis Malofiy. At
issue in the trial was whether Page had stolen the introduc-
tion of 1971’s Stairway from the obscure 1968 instrumental
Taurus by the band Spirit.
To the frustration of Malofiy, the judge said it was irrel-
evant whether the songs’ album recordings sounded alike.
What mattered was whether Page had lifted the Spirit song
as it had been written on a single page of music submitted to
the U.S. Copyright Office in 1967. The Taurus “deposit copy,”
as it’s called, is a spare document handwritten by a record
company scribe who listened to the record and then distilled
it into only 124 notes of piano music. The reverse engineer-
ing was required to comply with U.S. law, which before 1978
allowed songs to be registered only via sheet music “depos-
ited” in Washington. When a pianist performed the Taurus
deposit copy for jurors earlier in the trial, it didn’t sound much
like the Spirit record, let alone Stairway.
In a bind, Malofiy turned the issue on its head:
“I’d like to pull up Exhibit 2708, which is the Stairway to
Heaven deposit copy,” he told the court. The sheet music
appeared,projectedona screenbetweenPage’switnessstand
andthejurybox.“Canyoupointtowhereonthedepositcopy
ofStairwaytoHeavenit indicatesthesolo?”Malofiyasked,
referringtotheelectricguitarfinalethat’sconsideredoneof
Page’scrowningachievements.
“I’llhavetohavea look,”Pagesaid,thenscannedthefirst
bit.“Um,I thinkyouneedtoscrolldownonemore.”Thesec-
ondfoliocameuponthescreen.“Pleasescrollonemore,”
hesaidasmoremusicappeared.“Please,onemore,”hesaid
againasthefourthandfinalbitcameup.“OK.That’sit.I’ve
readit.”
“Youwouldagreethatthere’snosoloonthedeposit
copy...ofStairwaytoHeaven,whichwasdepositedwith
the office?”
“Yeah,we—Iagreewiththat.It’snotinthere,no,”Page said.
Malofiythenpointedtothefirstmeasure.Ontherecord,
Stairwaybeginswitha finger-pickedintroduction—oneofthe
mostrecognizablemusicalpassagesofthepasthalf-century,
mimickedbymillionsofaspiringguitarists.Thaticonicintro,
Malofiysaid,“That’snotrepresentedinthedepositcopy?”
“No,”Pagesaid.“You’recorrect.”
Sittinginthecourtroomthatday,I couldn’tbelievewhatI
washearing.Weresomeofthemostfamouspassagesinrock
historyreallynotprotectedbycopyright?Anddidthisalso
applytoanynumberofothersongswhosedepositcopieswere
certainlyequallylacking?I feltasif someonehaddropped
$100billsontheground.Countlessunregisteredbitsofsong—
guitarsolos,basslines,hornparts,backgroundvocals—could
besittingoutthereexposedtounscrupulousfinancialexploita-
tion.Ringtones,TVads,filmsoundtracks—orevenentirenew
songs—couldbemadeandsoldfromtheseorphanedriffs.Something had to be done. I would pick up these musical
$100 bills, these bits of song, and for safekeeping stitch them
into a composition that I would copyright as mine.
I would call it Purple Hotel Sympathy for the Stairway to Run.Led Zeppelin won at the 2016 trial, but the matter isn’t
resolved, and the stakes seem to have actually grown. Malofiy
appealed, and in September, a three-judge panel on the
9th U.S. Circuit Court of Appeals in San Francisco ordered a
Stairway do-over trial for procedural reasons. At the heart of
the judges’ decision was a potentially industry-changing dec-
laration: For pre-1978 unpublished songs, the deposited sheet
music “defines the scope of the copyright.”
That ruling set off second appeals by both sides. Led
Zeppelin asked for the original verdict to be upheld. Malofiy
asked the entire appeals court, and not only three judges, to
decide on the narrow issue of deposit copies. In early June, the
San Francisco appeals court voted to have a rare 11-judge panel
rehear the case in September, suspending the earlier appeals
decision. The only topic on which the court has asked the par-
ties for briefs so far is the primacy of deposit copies. The liti-
gation has broader implications, undergirding a high-profile
New York case in which plaintiffs are demanding more than
$100 million for the alleged theft of Marvin Gaye’s Let’s Get It
On for Ed Sheeran’s hit Thinking Out Loud.
TheironyistheremaybenowinningoutcomeforLed
Zeppelin.AsPage’stestimonyshowed,theharderhislaw-
yerspushforstrictreadingsofthecopyrightsheetmusic,the
moretheyweakentheprotectionforStairway. They’regoing
all-out,too.Thelegalteamforthebandanditspublisher,
WarnerMusicGroupCorp.,wroteina Decemberfilingabout
“theprimacyofdepositedsheetmusic”asa bedrockoftheir
industryandhow“contractsareenteredintoinrelianceon
thecertaintythata copyrightprotectsthecopyrightedwork.”
Theirargumentshaveimplicationsforanyonewhomade
musicbefore1978.Mymissionwastolearnwhatwasat
stakefortheold-timers—andalsotoseetheregistrationsfor
StairwayandtheotherclassichitsI hopedtoweaveintomy
owncomposition.I headedtoWashington.
I kidyounot,a visittothecard-catalogroomattheU.S.
CopyrightOfficecanbedeeplymoving.Anonlinedatabase
listscopyrightsregisteredstartingin1978,butearlierrecords
arehereonindexcards.Allsongs,books,plays,poems,fab-
ricpatterns,photos,movies—prettymucheveryproductof
creativitythatyourparentsandgrandparentsmayhaveseen,
read,orheard—havea cardthatlistsitsregistrationnumber,
date,claimant,title,andmore.If it’snothere,underU.S.law
it’salmostasif it neverexisted.(There’sanelectronicver-
sion,butit’sinanexperimentalstage.)Othercountrieshave
theirownsystems,butsongwritersfromaroundtheworld,
includingPageandRobertPlant,LedZeppelin’ssinger,rou-
tinelyregistertheirworksintheU.S.andbenefitfromtherel-
ativelyclearlinesestablishedbyitslegalsystem.
Copyrightdocumentationrevealsitselfinlayers.I usedthe
catalogtoorderupotherrecordsfromdeeperinthearchives,
suchasoriginalregistrationpapersandthedepositedsheet59PHOTO ILLUSTRATION BY 731; PHOTOS: GETTY IMAGES (6)