Expert Testimony Plays Key Role in Led Zeppelin Copyright Infringement Case

In the last few weeks, one Los Angeles federal court has gotten very into rock n’ roll, and rock n’ roll fans have gotten very into legal proceedings. The focus has been on one particular song – Led Zeppelin’s 1971 hit, “Stairway to Heaven.”. Widely regarded as one of the greatest rock songs of all time, members of Led Zeppelin have faced claims that the famous opening chords of “Stairway to Heaven” were plagiarized from “Taurus,”. This is a song by the less-than-well-known band Spirit.

For those who have been following the lawsuit, Thursday, June 23 marked the end of a bumpy ride. After several days of trial, five hours of deliberation, and one request for an acoustic guitar demonstration (which the judge granted), the jury decided in favor of Led Zeppelin.

Led Zeppelin’s victory comes after a high-profile trial that included a reunion of Led Zeppelin’s surviving members, a couple rock superfans, multiple expert witnesses, and various musical samples. To understand both the utility and the impact of expert witnesses in this case, it’s helpful to revisit the exact nature of the copyright infringement claim.

Michael Skidmore v. Led Zeppelin et al was filed on May 31, 2014 by the trustee for the estate of Randy Craig Wolfe Trust. Randy Craig Wolfe, also known as “Randy California,” was a founding member of the band Spirit who passed away in 1997. The complaint alleged that Spirit released an eponymous album in early 1968. This included an instrumental plucked-guitar song called “Taurus.”. The complaint asserted that Led Zeppelin began opening for Spirit’s shows on tour in late 1968. It was during that time that Led Zeppelin became familiar with “Taurus.”. At the heart of the complaint was the allegation that Led Zeppelin infringed on “Taurus” to write the famous opening chords of “Stairway to Heaven.”

In response to the complaint, Los Angeles U.S. District Judge Gary Klausner ruled that there was sufficient similarity between “Stairway to Heaven” and “Taurus” to put the question to a jury. Thus, 45 years after the release of “Stairway to Heaven” and 48 years after the release of “Taurus,” an 8-person jury was tasked with determining whether the former infringed on the latter.

Both the plaintiff and the defense for Led Zeppelin brought out their own musicology expert witnesses to support their respective cases. The plaintiff had initially sought to call six expert witnesses, but ended up with only three. Two to testify to musical similarities between “Taurus” and “Stairway to Heaven,” and one to testify to the revenues earned by “Stairway to Heaven” during the relevant time period.

The first expert brought in by the plaintiff was guitar expert Kevin Hanson. Hanson played parts of “Taurus” and “Stairway to Heaven” on the guitar and testified that they were “strikingly similar.”. On cross-examination, however, Hanson conceded that he could tell the two apart.

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The plaintiff then brought in Dr. Alexander Stewart, a musicologist and music professor at the University of Vermont. Stewart explained the music theory at issue, and testified to the close similarities between the composition of “Taurus” and “Stairway to Heaven.”. Specifically, he noted that in both chord progressions, the “E” note is skipped before the “A.”. This was unusual and distinct from any of the 65 other examples of songs submitted by the defense that were claimed to have similar chord structure.

It may be worth noting that Rolling Stone cast Dr. Stewart as “the most credible, sympathetic and compelling witness to take the stand in the trial other than [Jimmy] Page himself.” Stewart was described as speaking “cogently and clearly” and he “scrappily held his own under a tough cross-examination by Zeppelin’s counsel.”

The plaintiff’s final expert was Dr. Michael Einhorn, an economics consultant on media and IP matters who holds a Ph.D. in economics from Yale. Einhorn’s expertise was not in guitar notes but in numbers – specifically, how much the suit might be worth. Einhorn testified that he reviewed 50,000 pages of documents and analyzed the song’s earnings from 2011 to 2014. This is the three year period during which the plaintiff may be entitled to revenue share. Einhorn said that he used information from record sales, digital downloads, revenue streams, and other contracts. He testified that between 2011 and 2014, Led Zeppelin split £58.5 million from across their entire catalogue. For “Stairway to Heaven” alone, Einhorn estimated that the amount in question could be over $60 million dollars.

Here, too, it is worth mentioning that reporters noted some confusion regarding Einhorn’s testimony. By switching between dollars and pounds when stating figures, Einhorn made the exact total amount of his calculations unclear. Furthermore, upon cross-examination, Einhorn admitted that some of the figures he referred to came from a 2008 contract. This was therefore outside of the relevant 2011 – 2014 window. Einhorn also acknowledged that he did not deduct music company expenses when making his calculations. After Einhorn’s testimony, the plaintiffs rested their case.

The defense was not without their own duo of musical expert witnesses. Their response to the plaintiff’s guitar-playing expert witness was musical director Robert Mathes. At trial, Mathes played guitar and sang selections from “Stairway to Heaven”. He broke down the musical structure of the piece for the jury. Mathes’ testimony attempted to diminish the importance of the song’s opening sequence. This was the only part of the song under fire throughout the trial. Mathes argued that the entire song was iconic, not just the chord sequence at issue.

On cross-examination, plaintiff’s attorney discussed Mathes’ 2012 arrangement of a Led Zeppelin tribute at the Kennedy Center. Plaintiff’s attorney pointed out that Mathes cut out various portions of “Stairway to Heaven” to shorten it. However, he left the opening chord sequence conspicuously intact.

Led Zeppelin’s primary musical expert witness was Dr. Lawrence Ferrara, a musicologist at NYU. Ferrara came to trial with impressive credentials. His clients included famed musicians like Paul McCartney, Elton John, Billy Joel, Lady Gaga, James Brown, Jay Z, and Bruce Springsteen, as well as a number of other stars.

Ferrara testified that the chord sequence in question “has been around for 300 years”. Furthermore, it has been widely used throughout that time. He provided multiple examples of the chord sequence being used in popular pop songs. These included the Beatles’ “Michelle,” The Eagles’ “Hotel California,” and even “Chim Chim Cher-ee” from the children’s classic Mary Poppins.

Ferrara’s most significant moment on the stand was when he played musical sequences on the piano for the jury. He began by playing the sheet music for “Taurus” and followed with the opening chords of “Stairway to Heaven.”. Thereafter, Ferrara performed examples of older songs that used similar descending chromatic lines to demonstrate “prior art.”. Some of his prior art examples sounded more similar to “Stairway to Heaven” than “Taurus,”. This underscored Ferrara’s testimony that the chromatic sequence in question is a ubiquitous “musical building block” that “no one can possibly own.”

Reported impressions of the defense’s expert witness were not entirely positive. Rolling Stone wrote that Ferrara’s “academic approach proved confusing.”. He was occasionally patronizing, and he seemed boastful when responding to questions about his credentials.

Other sources described Ferrara’s testimony as similar to an academic lecture, and noted that he had difficulty staying on point. On cross-examination, Rolling Stone noted that Ferrara was “testy and defensive.”. Moreover, the fact that Ferrara’s testimony was timed perfectly with video screen exhibits made it seem curiously like his testimony was pre-planned.

Regardless, last Thursday’s verdict suggests that the defense prevailed in convincing the jury of Led Zeppelin’s artistic integrity. The testimony of three rock legends, two musical expert witnesses, a guitar, and a piano performance may have ultimately been a winning combination.