Stairway to litigation
By 
Some thoughts on the ongoing suit brought by the estate of Randy Wolfe against Led Zeppelin for purportedly copying too much of one of Wolfe’s songs in the process of writing “Stairway to Heaven:”
On one level, Plant and Page are hardly sympathetic defendants. Led Zeppelin was (in)famous for taking what could be charitably termed a particularly casual attitude toward musical borrowings of various kinds. This has led them to be sued on several occasions; for example, the songs “Dazed and Confused,” “Whole Lotta Love” and “Bring It On Home” all triggered legal actions of one kind or another that concluded with partial musical credit being given eventually to the folk singer Jake Holmes for the former, and blues legend Willie Dixon for the latter.
This is far from an exhaustive list of the band’s musical shoplifting: a particularly egregious example is how the band’s members listed themselves as the composers of “In My Time of Dying,” on their 1975 album “Physical Graffiti.” “In My Time of Dying” is a traditional gospel song, which Led Zeppelin had as much to do with writing as they did with composing “Amazing Grace.”
Still, the suit by Wolfe’s estate seems dubious. While there are definitely some striking similarities in the opening chord sequences of “Taurus” and “Stairway to Heaven,” it’s incredibly easy to find such similarities among enormous numbers of popular songs. Here are just a couple right off the top of my head: compare Bob Dylan’s “My Back Pages” to Neil Young’s “Days that Used to Be,” or Nena’s “99 Luftballons” to the Cure’s “Just Like Heaven.”
Copyright law in the U.S. says that if an artist copies another song, whether consciously or unconsciously, the artist is liable for violating the copyright in the other song if the copying is “substantially similar.” Now what does “substantially” mean? It means that the copying is egregious enough that it violates the copyright in the other song. And how egregious does that copying have to be to do that? Well, the answer to that is that the copying has to be substantial!
In other words, we just throw this inescapably fuzzy question into the black box of the jury room and ask a bunch of laypeople to sort it all out. Of course, the jury will first be helped out by the testimony of an expert witness for the plaintiff, who will tell them that the copying in question is clearly substantial, and an expert witness for the defense, who will tell them that it’s clearly not. So there’s that.
All of which is to say that the process of the creation of popular music doesn’t fit very neatly with our process of creating and protecting private property rights in that music.