A COPYRIGHT battle over Marvin Gaye’s “Let’s Get It On” was halted last week by a judge until a separate fight over Led Zeppelin’s “Stairway to Heaven” is resolved.
Holders of rights to Gaye’s 1973 song are demanding more than $100 million for the alleged theft of the composition for Ed Sheeran’s hit “Thinking Out Loud.”
The parties will set new dates for the litigation only after an appeals court in San Francisco rules in the “Stairway” case, US District Judge Louis L. Stanton in Manhattan wrote in a July 2 order.
Sheeran, in court filings, denies infringing “Let’s Get It On.” His defense echoes that of Led Zeppelin, which is accused of copying the opening notes of “Stairway” from the obscure 1968 instrumental “Taurus” by the band Spirit.
Led Zeppelin and Sheeran argue that copyright protection for older songs only extends to sheet music deposited at the US Copyright Office — and not to additional musical elements contained in studio recordings.
Until 1978, musical compositions could only be registered via sheet music, according to US copyright law. Songs were often composed by recording artists with no knowledge of musical notation, and then transcribed by record company clerks afterwards for the registrations.
A Bloomberg Businessweek investigation found that restricting copyright protection to the deposited sheet music would render unprotected some of the most famous classic rock and soul riffs, opening them to possible commercial exploitation for ring tones, ads, video games, or entire new songs.
Absent passages from the so-called “deposit copies” include solos from the Doors, Eagles, Billy Joel, Gaye, and Bruce Springsteen. Even Jimmy Page’s guitar solo from the end of “Stairway” is nowhere in Led Zeppelin’s registered sheet music.
Led Zeppelin initially won at a 2016 trial in Los Angeles, where a jury only heard musicians’ renderings of the “Taurus” sheet music, but not the album recording.
Last year, a three-judge panel on San Francisco’s federal appeals court ordered a do-over of that trial for procedural reasons. The panel also declared that for pre-1978 unpublished songs, the deposited sheet music “defines the scope of the copyright.”
That ruling set off a second round of appeals by both sides. In early June, the appeals court voted to have a rare 11-judge panel rehear the case this coming September, suspending the 2018 decision. The only topic on which the court has asked the parties for written arguments so far is the primacy of the registered sheet music.
“There could be many decisions, but the main issue is the deposit copy,” said David Pullman, an investor in music rights who is a plaintiff in the “Let’s Get It On” litigation. Pullman is best known for turning David Bowie’s music royalty flows into “Bowie Bonds” in 1997.
The “Let’s Get It On” litigation is comprised of two separate cases: Griffin, v. Sheeran, 1:17-cv-05221, and Structured Asset Sales LLC v. Sheeran, 1:18-cv-05839, both in US District Court, Southern District of New York (Manhattan).
The “Stairway to Heaven” appeal is Skidmore v. Led Zeppelin, 16-56057, US Ninth Circuit Court of Appeals (San Francisco). — Bloomberg