I. Introduction

The 17th Title of the United States Code lays down guidelines for protecting Artistic works using Copyright laws. Despite the vast ambit of the US copyright laws, it is extremely unfavorable for many musicians. The musicians are unable to derive the benefits and proper credit for their work. This was evident in the recent case of Led Zeppelin v. Michael Skidmore. This case was decided based on the Copyright Act of 1909, and the same has been replaced by the Copyright Act of 1976. Yet, the judgement sets a bad precedent for Copyright and plagiarism issues that might arise in the music industry. The Ninth Circuit, in this case, has relied heavily on sheet-music to deliver judgment and has not compared songs in their entirety. This raises another question on the difference between originality and influence.

With these facts in mind, this article tries to assess the impact of the case on the future of the music industry and how the over-reliance of Courts on sheet music is flawed. Songs are more than a piece of sheet music.

The Dispute between Led Zeppelin and Michael Skidmore

The Dispute arises due to the similarities between two songs, Stairway to Heaven, released by Led Zeppelin in 1971, and Taurus, released by the band Spirit in 1967. The two songs had a similar sounding guitar intro, and many rock music fans had noticed it as well. Taurus was composed by the lead guitarist of the band, Randy Wolfe, who had died in 1996. In 2014, a representative of Randy Wolfe, Michael Skidmore, filed a suit for copyright infringement by Led Zeppelin on the song Taurus. The Statute of Limitation generally prevents such a suit arising after 43 years of the cause of action. In this case, Led Zeppelin had released a remastered version of the song in 2014, which prevented applying the doctrine of limitation because every publication gave rise to a new statutory limitation.

The case then passed through several levels of court proceedings, where the Ninth Circuit finally decided it. The Ninth Circuit gave the judgment in favor of the defendant, stating that the song Stairway to Heaven did not infringe upon the rights of the song Taurus. In their judgment, the Court laid down the scope of copyright laws. The judgment failed to consider the issue of deciding the originality of music concerning only the sheet music.

Under Copyright law, for the work of the plaintiff to be protected, the plaintiff must show that the plaintiff owns a valid copyright and protected part of his work were copied and plagiarized. Furthermore, the plaintiff must prove that there has been copying and unlawful appropriation, using the substantial similarity test. The substantial similarity test is a two-prong test consisting of the extrinsic test and the intrinsic test. The extrinsic test relies on the objective similarities of the work ideas and protectable expressions. The advice of an expert may be sought in this regard. The intrinsic test interprets the subjective similarity and calls upon the jury to decide whether the two concepts are similar and how an ordinary person would interpret them. The sheet music protects the generic sounds that are played in the music. The sound recordings protect the artist’s performance of the musical work.

In the case, based on circumstantial evidence, Skidmore was able to prove that Led Zeppelin had the chance to hear the music made by Taurus since they toured with them from 66-67. The sheet music of the two songs, though, did not sound similar at all. The Court, on that basis, declared that Stairway to Heaven and Taurus were not similar songs on that basis. In reality, the Court was bound by the Copyright Act of 1909. The original recordings of the music could not be played accordingly—Copyright Act of 1909 that governed both the kinds of music covered only sheet music within its ambit. In the end, Skidmore lost the case based on the technicalities of sheet music. Sheet music did not cover the whole ambit of the song to represent the complete picture of the song.

The Copyright Act of 1976 applies only to songs that have been released at a later date. If an artist had released the song within its predecessor (Copyright Act of 1909), then the Copyright Act protection of 1976 would not extend to the same. This is unfair to the representative of the artist who has only submitted a music sheet as a reference to the song, which was the rule before the implementation of the Copyright Act of 1976. If an artist would only submit a music sheet for copyright protection, then it would be difficult for the artist to put the whole song compressed into musical sheets. Sheet music does not represent the song accurately. The jury would be misguided in such circumstances as sheet music only represents a few basic chords. This acts as a barrier for the music to be protected under the Copyright Act and the tests. It makes it challenging to distinguish originality from influence in such situations.

Originality, Copyrights, and Sheet Music

Originality comes when there are limitless possibilities to express oneself. For example, a movie may be original, including new concepts or by choosing a separate genre to base their films on. Western music is limited to twelve-note octaves. The twelve notes limit themselves to several permutations and combinations on the music sheet.

History has been witness that many of these artists draw from various other sources to produce the final form of their art. Some artists are influenced by the great artists that existed before them: some different intermix genres of music in the final form. Many opera artists also engaged in creating different melodies with pre-existing music in the colonial era. This is termed as influence as compared to originality. Under the law, originality comes from the independent creation of the author and his degree of creativity. The originality can only be determined by a jury who could hear the overall music rather than depending on the music sheets, which would confuse the jury of the quality of the music.

The main aim of Copyright laws is to differentiate between ideas and expression to exclude the former from its ambit. The only exception to this rule is the doctrine of merger in the Copyright law. The doctrine of merger postulates that when the expression is the idea and vice-versa, the Copyright law will not apply to the same. Otherwise, expression in music is based on the creativity of the artists, how the artists express themselves. In the form, the artist decides to do so. Sheet music, however, is only an expression of ideas of the music and not a form of expression per se. There is a difference in the music expressed by an artist and the one that is written down on a piece of paper.

Above all, sheet music is not actual music but pre-music. Music has a language of its own, which is deciphered only when the sound hits our eardrums. Furthermore, musical work contains various common elements that form part of the overall music. Since they are used repeatedly throughout the industry, it leads to critics disregarding it as common elements within the public domain. This, in the end, makes the line between originality and influence difficult to define.


The focus on musical recordings in the intrinsic test does not always lead to favorable outcomes. It leads to, at times; arbitrary decision- making as the juries focus on what soothes the ears. This difficulty can be overcome when sheet music, along with musical recordings, is compulsorily made to pass the extrinsic and intrinsic test.

The 21st century is an age of musical borrowings. New music is coming up being heavily influenced by the music of the past. In many cases, artists are remixing the music and releasing the new one. In this scenario, it becomes imperative that the interests of the artists are protected in these times through copyright. The case of Led Zeppelin could be a significant inflection point in this regard. However, the Court decided to stick with the law and relied on music sheets to understand the music. This case would now have a direct impact in Ed Sheeran” s battle in Thinking Out Loud v. Let’s Get it on. Ed Sheeran has been accused of copying Marvin Gaye’s ‘Let's Get it On', which was released in 1973, in his song 'Thinking Out Loud' which was released over 40 years later in 2014. The Court, in this case, would be compelled to follow the same guidelines, where it would be restricted to construing only the deposit of Let's Get it On, a music sheet as compared to the overall song. The law must shift its focus from the music sheet to the overall song while deciding on Copyright issues of songs. Otherwise, music that is only protected by sheet music could be remixed soon and passed off as the music of another artist who will take the credit for the same, which is a clear violation of the intention of the Copyright legislature.

Title Image Source: The Score Magazine

This article has been written by Aanish Aggarwal who is a Second year student at the West Bengal National University of Juridical Sciences, Kolkata.