On June 14th a case against Led Zeppelin members Robert Plant and Jimmy Page will go to trial in Los Angeles, accusing them of copying the introduction to arguably their most famous song: “Stairway to Heaven.”
The lawsuit, filed in 2014, comes from a trustee of the estate of Spirit guitarist Randy Wolfe (also known by his stage name “Randy California.”) Wolfe died in 1997, but the man in control of his estate says Led Zeppelin ripped off the opening chords to Spirit’s song “Taurus,” which Wolfe wrote.
Led Zeppelin deny ever having heard the song, despite sharing a bill with Spirit three times at festivals between 1968 and 1970 (when “Stairway to Heaven” was written.)
This isn’t the first time that Led Zeppelin have been involved with alleged copyright infringement. The band previously settled with Jake Holmes over “Dazed and Confused,” Anne Bredon over “Babe, I’m Gonna Leave You,” Howlin’ Wolf over “How Many More Times” and “The Lemon Song,” and Willie Dixon over “Whole Lotta Love” and “Bring It on Home.”
There’s a history of Led Zeppelin being accused of stealing music, but the plaintiff in this case needs to prove that the introductions of the two songs are similar enough to indicate copyright infringement, and also to show that Plant and Page had access to “Taurus.”
We spoke to Jeffrey Kobulnick, a partner at law firm Brutzkus Gubner who specialises in copyright and trademark infringement, about the “Stairway to Heaven” case ahead of the trial. He works with cases like this regularly, and has also presented cases before the same judge as the upcoming trial.
Nobody has an upper hand going into the trial
Judge Klausner, who will preside over the case, granted Led Zeppelin multiple motions to exclude information from the case. The plaintiff had wanted to mention the band’s drink and drug use, for example, but the judge ruled that it could not be used in court. So does that mean that Led Zeppelin have gained a tactical advantage? Kobulnick says no, it’s not quite that simple:
I wouldn’t say [Led Zeppelin has the] upper hand. I would say that the court has made a decision to exclude certain evidence which it doesn’t deem to be particularly relevant to the issues at hand for the trial and for the jury. That’s not unusual. Parties going to trial file motions in limine to exclude certain types of evidence from trial and this is what they did here and the judge decided that those particular pieces of information are not relevant to this case.
Once you start the jury trial it’s a clean slate and the plaintiff presents his case and then the defendant puts on its defence and the jury goes into the deliberation room and they weigh all the evidence that they’ve heard at trial. It really doesn’t matter procedurally how many motions were granted in which party’s favour before the trial begins. It’s all up to the jury to decide based on the evidence presented at trial.
The jury will never know about all the motions that have been filed beforehand, it won’t know anything about any of the rulings or opinions of the court that the judge may have expressed during the case before trial.
Led Zeppelin’s refusal to attend the trial could hurt their chances
Both Jimmy Page and Robert Plant have signaled via their lawyers that they’re unlikely to attend the trial in Los Angeles. That means that lawyers will have to use their video declarations instead, which were recorded in London at the band’s request. The plaintiff’s lawyer accused the band of “hiding in the UK” over their refusal to attend. But what impact could a reliance on video declarations rather than live witnesses have? Here’s Kobulnick:
I prefer to have the witnesses there live rather than relying on playing a video deposition for the jury. I find that the jury is more engaged when there’s a real, live person sitting there in the chair.
The jury does pay attention to witnesses when they’re in the witness chair, not only on the substantive responses to a question but the body language, the demeanor, and how they respond to cross examination by the other side’s lawyer. I personally don’t find video depositions to be as effective. If it’s for one of my own witnesses I would much rather have the person there live and I want the jury to be able to observe that person live because the jury is looking at their credibility and it’s a little hard for a juror to find a witness on a video screen as genuine or credible as somebody who is there live.
Each juror forms an opinion very quickly once a witness takes the stand, usually very quickly. Whether this is a witness that they believe or a witness that they just do not believe and they just think this witness is not credible. It’s preferable to have the live witnesses there.
Both sides are going to have to carefully select which evidence they use
Both sides in the trial are only going to get 10 hours each to present their evidence and witnesses, so they need to carefully plan what will actually be presented at the trial. Kobulnick says that some judges even use chess clock apps to measure how much time each side gets.
And because Led Zeppelin are appearing via their video testimonies, the amount of video evidence used may be kept to a minimum:
Frankly, if you’ve got 10 hours from Judge Klausner and you don’t plan ahead, if you’ve got too many witnesses, you may not get to some of your witness testimony. You may not get to some of the evidence that is perhaps crucial to winning your side of the argument. You really have to be careful about that, you have to allocate your time very carefully, and that’s another reason why lawyers will minimise the use of video deposition testimony. If you only get 10 hours, that goes by really quick, you want to make sure most of that time is spent with the most compelling evidence you have, which is normally not going to be a video.
It has been a long process to select the jury
It’s tricky to select a jury that won’t be biased when the court case involves one of the biggest bands in the world. Kobulnick explains the process the court will have gone through to select the jury:
During the voir dire process the potential jurors come in and they’re asked a series of questions by the parties and by the judge to determine whether each potential juror can be completely unbiased and impartial and objective, to make sure they’re not biased towards one party or the other.
They’re going to be asked a lot of questions about their own involvement in the music industry, if anyone in their family is in the business, if they’re related to any of the parties, or indirectly related to any of the parties or family members within any of the parties or any of the attorneys in the case.
There’s a whole process that’s set up to ensure that the jury that finally gets impaneled is an objective group of people with no connection with anything going on in the case that might persuade them to cast a decision that’s inconsistent with the evidence that’s presented at the trial.
Now, here you’re dealing with well-known bands and there are a lot of fans of the music. It’s probably not going to be possible to have a jury of people that have never heard of the bands, that have never heard the music, but the real question is, even with that understanding, can they only focus on the evidence that’s being presented by the parties at trial and only use that evidence and nothing from their own life experience outside of the courtroom to make that decision?
The lawyer suing Led Zeppelin is a renegade…
Article truncated: Read the whole article here:
http://www.businessinsider.com/copyright-lawyer-explains-led-zeppelins-stairway-to-heaven-trial-2016-5
By James Cook