Here’s a guest post on the Stairway to Heaven copyright litigation by Sean O’Connor. He is the Boeing International Professor at the University of Washington School of Law (Seattle). He is also Chair of the Center for Advanced Study and Research on Innovation Policy and Faculty Director of the Cannabis Law & Policy Project. This is a condensed version of a longer post he wrote for his blog.
Jimmy Page brought his guitar to court to defend a passage that forms the basis of the iconic Stairway to Heaven from allegations of copyright infringement. The estate of “Randy California” (Randy Wolfe) is suing Led Zeppelin because California’s Taurus predated Stairway and includes a very similar sounding guitar part.
While Zeppelin is defending in part on lack of access, I’m more interested in how they will defend against substantial similarity.
That’s because it implicates a theme I’ve been arguing for years: instrumental components of songs such as guitar hooks and riffs should be recognized as valuable parts of overall music compositions. We should not limit analysis to only whether some “lead melody” (usually the main vocal line) has been copied. At the same time, not every part rises to even the modest level of originality required for copyright protection.
To help think about this, consider a “professional” composer who scores a symphony or movie theme music: usually she writes out all of the parts in sheet music and there is copyright, ostensibly, on the whole composition. We don’t prejudice the clarinet line from the cello line, from perhaps even the tympani part, just because they are played on those instruments, or whether they are the “main” melody or not.
Some of those parts may of course be merely copies of standard existing themes/motifs, thus failing to be protectable based on that. If only that part is “copied” in another composition, then there is no infringement. But just because something is a rhythmic or harmonic part does not categorically exclude it from protection.
So what’s going on in the similar sound between the Stairway and Taurus guitar parts?
It is an ear catching motif because it is based around a chromatic descending line within a minor chord that “breaks” the rules of Western key centered compositions. Take a look at this video where I play the Taurus part twice, and then play only the descending line:
While it could be notated as a sequence of chord changes on each beat, from a practical musician’s perspective it is what I call a “pass though line”—meaning a harmonic or melodic line passing through a single chord for most or all of the section. In a conventional key centered descending line, the drops would alternate between whole steps and half steps (two frets or one frets respectively on the guitar, where each fret is a half step). But here you can see that the line drops by 4 half steps. This is “chromatic” in that is uses all of the minimum Western note differentials (half steps).
Look again at the video and you will see that I am playing the other notes of the beginning Am chord and only changing the notes on the 4th string for the descending chromatic line. At the very end there is finally a chord change to the D modal chord.
Now look at Stairway to Heaven:
Page does not complete much of the pass through line—only the first three notes. But that is enough to establish the motif for the listener. Then, rather than simply following the descending line all the way down to the V note (as is standard for this device), after the flatted VII he goes into a full chord change to D, and then into F, and then a G/B, and resolving back to parts of an Am. Again, I play the full part twice, and then the pass through line on its own.
Now look at the opening guitar part from The Beatles’ Michelle that predates both:
We are in Fm now, and working off only the top three strings of the guitar, but you should see/hear the chromatic descending line within the Fm, before resolving to a C. In this case, note the full 5 half step descent: it moves from VIII to major VII to flatted/dominant VII to VI to augmented (#) V to V.
Finally, look at Jim Croce’s Time in a Bottle that is roughly contemporary with Stairway and Taurus:
We are in Dm now, but it also nicely steps down all the way to the V, and it places the descending line in the middle of the Dm chord voicing stack, not at the bottom of it. It also adds a fancy turn around from Gm6 to Gm to A7 to Gm and back to A7. Didn’t bother playing the descending line separately as you get the idea by this point.
Here is the upshot:
The first person who came up with this descending chromatic line within a minor chord should have gotten copyright protection for it under today’s standards. Irrelevant whether it is the “main melody.” That person is lost to the mists of time (might not even be Bach), and so now the motif has become, for me, “scenes a faire,” a copyright term of art for stock scenes or plot devices in plays or novels, but which I have adopted for similar purposes in music. These are not “building blocks” in the sense of notes and chords, but a more complex composing “design tool.” Remember, we are talking about the concept of the line, not a particular version of it. Each composer will adapt it to her artistic vision.
That doesn’t mean that every passage centered around it is non-protectable. What counts for copyright protection is what the composer adds to this core concept. Jimmy Page added counterpoint (the ascending line you hear played on the high string of the guitar) as well as different chords midway into the standard descent. Someone who copies that entire exact part may in fact be infringing Zeppelin’s copyright in Stairway. Randy California unfortunately did not add much. He just played the full chromatic descending line. Nonetheless, if someone copied the entire exact part that California composed–all the way down to the D modal chord–then there could be infringement. McCartney, writing Michelle, added a nice turn around at the end. Again, copying the whole thing would be a problem. Croce likewise added an original turn around.
So in the end, I’m hoping the jury doesn’t find Stairway infringing, even if there was access and perhaps even if there was some intentional or subconscious copying. The thing that was copied was a scenes a faire motif broadly used at the time Page was writing Stairway–and he didn’t even use the full version of it or of California’s version.
© 2016 Sean M. O’Connor. May be reproduced for noncommercial purposes only, provided attribution is given to author.
