Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Skidmore v. Led Zeppelin, Nos. 16-56067, 16-56287 (Mar. 9, 2020) (en banc). Skidmore brought a copyright infringement action against the band Led Zeppelin. Skidmore’s suit claimed the opening notes of Stairway to Heaven infringed the copyright on Taurus, a song copyrighted in 1967. The district court ruled that, under the 1909 Copyright Act, the scope of the copyright was limited to the composition contained in the transcribed deposit copy of the song filed in 1967, and granted Led Zeppelin’s motion to exclude sound recordings of Taurus from trial. The jury returned a verdict of no infringement in Led Zeppelin’s favor, finding that Skidmore owned the copyright and Led Zeppelin had access to the song, but that the two songs were not substantially similar. Skidmore appealed, concentrating on a number of legal issues and challenging, among other issues: the district court’s rulings excluding sound recordings; the sufficiency of the district court’s jury instruction on originality and refusal to give “inverse ratio rule” and “selection and arrangement” instructions; and the imposition of trial time limits. On appeal, a panel of the Ninth Circuit vacated and remanded for new trial, but the Ninth Circuit granted rehearing en banc.
On rehearing, the en banc Court affirmed the district court’s holding limiting Skidmore’s copyright protection to the composition contained in the transcribed deposit copy. The Court also agreed with the district court’s exclusion of sound recordings of Taurus during trial on the basis that, while such recordings were relevant to the issue of access they were not relevant to substantial similarity, and the potential for prejudicing the jury in that determination was too great. The Court also determined the evidentiary question was moot because the jury found in Skidmore’s favor on access. On the jury instructions, the Court abrogated the “inverse ratio rule”—which permits a lower standard of proof of substantial similarity when a high degree of access is shown—in the Ninth Circuit. The Court further held the originality instructions were appropriate, and that the failure to give a “selection and arrangement” instruction was not in error, at least in part because Skidmore did not present a selection and arrangement theory at trial. The Court also affirmed the district court’s remaining rulings, including on the issue of trial time limits.