The US Court of Appeals for the Ninth Circuit (sitting en banc) has published its ruling in the high-profile copyright dispute between Michael Skidmore (acting as Trustee for the Randy Craig Wolfe Trust) and Led Zeppelin. 

Skidmore sued Led Zeppelin and some music companies for copyright infringement. The dispute was whether the opening notes of Led Zeppelin’s popular song Stairway to Heaven infringed the copyright in Taurus, a song written by guitarist Randy Wolfe and performed by his rock band Spirit. 

Majority ruling

The en banc court published its opinion on March 9, upholding the 2016 jury verdict/judgment of District Judge Klausner that there was no infringement. In the opinion, the en banc court addressed the scope of copyright in unpublished musical work under the 1909 and 1976 Copyright Acts; the requirements to prove copyright infringement (especially the issues of ‘access’ and ‘substantial similarity’); the inverse ratio rule (‘which requires a lower standard of proof of substantial similarity when a high degree of access is shown’); and the jury instructions given by the District Court judge. Judge McKeown filed the opinion, which included a partial dissenting opinion by Judge Ikuta and Judge Bea.

Inverse ratio precedent overruled

Despite the partial dissenting opinion, all the judges agreed to reject the inverse ratio rule. On this issue, the en banc court concluded:

Although we are cautious in overruling precedent—as we should be—the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule. Access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.

By rejecting the inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity.

We join the majority of our sister circuits that have considered the inverse ratio rule and have correctly chosen to excise it from copyright analysis.

It remains to be seen whether Michael Skidmore will appeal to the US Supreme Court. According to Rolling Stone, Skidmore’s lawyer Francis Malofiy said he is considering his options.

For a background on the dispute, read Managing IP's previous analysis here.

Legal representatives

Francis Malofiy and Alfred Joseph Fluehr of Francis Alexander for Michael Skidmore (acting as Trustee for the Randy Craig Wolfe Trust)

Peter J Anderson of Law Offices of Peter J Anderson and Helene M Freeman of Phillips Nizer for Led Zeppelin and the other defendants.

Amicus curiae law firms

The court received amicus curiae briefs from a number of interested parties, including the Recording Industry Association of America, the National Music Publishers Association and United States Department of Justice.

The law firms on record were McPherson, Mayer Brown, Freundlich Law and AlvaradoSmith.

Members of the en banc court

Sidney R Thomas (Chief Judge) M Margaret McKeown, William A Fletcher, Johnnie B Rawlinson, Carlos T Bea, Sandra S Ikuta, Mary H Murguia, Jacqueline H Nguyen, Paul J Watford, Andrew D Hurwitz, and Bridget S Bade.

Read the court's opinion here.