Earlier this month a US District Judge gave Led Zeppelin, and the wider music industry, the worst possible news. Judge Gary Klausner ruled that, due to what he called the “substantial similarities” between part of the acoustic guitar line of Stairway To Heaven and the Randy California-written Taurus (a two and a half minute instrumental track from Spirit’s eponymous 1967 album), Zeppelin must face a jury trial over the accusation that they plagiarised the song for part of theirs.
There have, of course, been major plagiarism suits before but they’ve had little affect on the wider industry. This time, however, things could be be very different. A guilty verdict would send out shockwaves whose reverberations will be felt much further-a-field than Jimmy Page’s wallet. This time it’s the music industry as a whole that will feel the affect and the results may well prove disastrous.
The names of Richard Busch and Francis Malofiy may not mean much now but before long many of rock’s greatest songwriters could be cursing the day they were born.
“I don’t think anybody steals anything. All of us borrow” – B.B. King
The interesting thing about the heinous crime of plagiarism is that it isn’t actually a crime at all. The act of ‘literary theft’, one of its most fascinating attributes, was that it found its way into the dictionary without even having a fixed definition. Although it carries the full accusatory weight of acts like theft, cheating, piracy, fraud and immorality, in reality, it describes something that is little more than a matter of questionable ethics. Only when it is linked to the rather more legally-black-and-white issue of copyright infringement does it take on a more structured charge.
Traditionally, there has always been a kind of legal understanding of what constitutes plagiarism in the music business and it basically falls into three main categories:
1) Lyrical reproduction. This is best illustrated in the case of The Beatles’ Come Together, for which John Lennon had deliberately included a lyric from Chuck Berry’s You Can’t Catch Me, by way of a tribute to one of his heroes.
2) Melodic similarity. This is when a vocal or musical melody is deemed to have been, “without question”, a little too “inspired” by another track. A good example of this was the case of Ray Parker Jnr, whose Ghostbusters was deemed to have plagiarised Huey Lewis’ I Want a New Drug.
3) Failure to secure the necessary clearances and permissions required for sampling or reproduction. This is a more clear-cut, usually unforgivably stupid and always incredibly costly, oversight. Most famously, it happened with The Verve’s Bitter Sweet Symphony, for which they used a five note sample of Andrew Loog Oldham’s orchestral version of the Rolling Stones’ The Last Time but failed to get permission for its underlying composition, bringing them into the firing line of Allen Klein and costing them 100% of their royalties.
And, then there is the slightly greyer area – the one in which Led Zeppelin currently find themselves – of riffs, licks and progressions which simply cannot be described as similar “without question” but rather refers to a musical sequence that has, more often than not, appeared in many compositions throughout the history of music.
Usually, arbitration in these cases is placed in the hands of experts in both musical theory and practice – people who have a full understanding of the technical evidence and a grasp of the process of composition. In these cases, it has previously been thought that placing the verdict in the hands of a jury could mean that justice is hampered by their inability to compute the complexities of musical theory or their judgment swayed by personal feelings towards a band or artist.
Interestingly, with this Zeppelin case, even the judge, in his summary judgment, concluded by saying “what remains is a subjective assessment of the ‘concept and feel’ of two works… A task no more suitable for a judge than for a jury.”
It was just such a verdict, handed down by the jury in a recent trial, which saw all the previous “understanding” discarded, replaced by an opportunistic ambulance-chasing style of litigation, that could very well change the industry forever. Led Zeppelin’s undoing started with Robin Thicke and Usher…
Back in 2013, the family of Marvin Gaye, represented by lawyer, Robert Busch, filed a suit, alleging that worldwide hit Blurred Lines, written by Pharrell Williams and Robin Thicke, had copied Gaye’s 1977 disco track Got To Give it Up.
Busch, himself, is part of a new breed of aggressive, entrepreneurial lawyers whose hard-nosed tactics at the deposition stage are more about ensuring the case makes its way to a jury trial – where his particular skills have a greater chance of influencing the outcome – than anything else.
Things certainly went to plan in the Blurred Lines case. Video film of the deposition, shows a frustrated-looking Pharrell refusing to answer Busch’s simplistic, patronising questions about chords and keys. If Williams was dismissive, Thicke appeared to not take the matter seriously in any way, with him finally admitting that, having been drunk and high for most of that year, he hadn’t contributed to much of the writing process at all. Between them the judge concluded that the case should go to jury trial.
In court, the expert testimony from the prosecution maintained that Blurred Lines was a copy of Gaye’s track and further alleged that they had copied Gaye’s distinctive bass line. In fact, when transposed onto sheet music, one can see that there is almost no similarity between the two tracks. (Click here for a detailed musical analysis.)
The problem stemmed from Williams’ admission that, in approaching the basic concept for the song, he had wanted to recreate the “vibe” of his idol Marvin Gaye’s music from the early 70s. In addition, the prosecution pointed to interviews in which Thicke had cited Got To Give it Up as a track he regularly looked to for inspiration.
The initial charge of “copying” had somehow become an issue of “shared vibe”. This was something that had never previously been a consideration in a lawsuit of this nature. “Vibe,” as one commentator put it, ”was not something you used to be able to put on trial.”
In the end, lack of precedent was not enough to stop the jury from handing down a verdict in favour of the Gaye family. The shock of the decision was one thing – the judge’s ruling for damages was quite another. The Gaye family were awarded $5.3 million and 50% of all future royalties, one of the largest payouts in music history.
Reverberations could be felt throughout the industry.
If ‘vibe’ was now considered a constituent of plagiarism and copyright infringement, was there any music that was safe from prosecution? “This ruling will spark a wave of litigation you won’t believe and the like of which the music business will have never seen,” predicted Josh Kaplan, a corporate and entertainment lawyer who specialises in music management.
The scene was set for the next major confrontation and, sadly for Jimmy Page, it was Led Zeppelin who would find themselves at the sharp end.
“I always tried to bring something fresh to anything that I used. I always made sure to come up with some variation. In fact, in most cases you would never know what the original source could be” – Jimmy Page
On May 21st 2014, Judge Paul Diamond was beginning his summary in the case of Marino vs. Usher, a copyright infringement action that had been brought by songwriter Daniel Marino against R’n’B singer Usher. Marino claimed that his song, Club Girl had been re-titled Bad Girl and appeared on Usher’s Confessions album without him having received a writing or production credit.
Back in 2011, Marino had met a young lawyer named Francis Malofiy. Malofiy was not an entertainment lawyer, far from it, and had earned a reputation for being an aggressive litigator who used somewhat questionable tactics. In one civil action suit against Volvo, he had altered company documents which resulted in the suspension of the lawsuit.
Yet, this is a man whose career had almost ended before it began.
Fresh out of law school, he had been involved in a serious incident in a bar, during which he had smashed a glass in a man’s face. Presented with damning video evidence and facing a ten year prison sentence, he somehow managed to persuade a jury that he had simply acted in self defence. The ‘not guilty’ verdict shocked both the police and the prosecuting attorneys. Malofiy had “the gift of the gab”.
He persuaded Marino that he was the man to take on his case against Usher, despite his lack of experience.
The details of the case itself, are extraordinary, not only in its content but in Malofiy’s conduct, which resulted in his being sanctioned for obtaining affidavits through deception, being cited for several incidents of serious misconduct (including coaching a witness), using foul and abusive language, making sexist and threatening remarks, needlessly increasing his discovery costs and failing to provide his client with proper council. In his conclusion, the judge not only ruled in favour of the defendants, he also recommended that Malofiy be suspended from practice.
Maybe Malofiy had other things on his mind. In 2013, Malofiy had been engaged by Mark Andes, a former bass player for Spirit and a one time member of Heart, who was opposing the Rock ‘n’ Roll Hall of Fame’s use of his image. During their discussions, Andes had brought up the Stairway matter and his wish to pursue a case against Led Zeppelin to ensure that Randy California receive the credit that he believed was owed the deceased guitarist. The only person with the legal standing to do so, however, was Mick Skidmore, the trustee for the Randy Craig Wolfe (California’s real name) Trust. Skidmore had assumed that the statute of limitations on the issue had run out – besides which, he didn’t want to take on the Zeppelin machine in a costly suit he felt he could never win.
Malofiy, a lifelong fan of Zeppelin, immediately saw the opportunity to be at the helm of plagiarism’s Superbowl. He persuaded Skidmore that a lawsuit could and should be brought. No sooner had the verdict been given in favour of Usher in the Marino case, Milofiy had turned his attention elsewhere. Within a week, the one-time Zeppelin fan had filed documents, using the same fonts the band had used for the Led Zeppelin 4 album, issuing a complaint against Led Zeppelin, the three remaining members, Warner Music and Super Hype Publishing, for copyright infringement in the matter of Stairway to Heaven and a further charge of Falsification of Rock ‘n’ Roll History.
“A lot of rock & roll songs sound alike. Ask Chuck Berry. The Strokes took American Girl (for their song Last Nite) and I saw an interview where they actually admitted it. That made me laugh out loud. I was like, ‘OK, good for you.’ It doesn’t bother me” – Tom Petty
This is not the first time that Led Zeppelin have found themselves in the dock over plagiarism accusations. They have faced similar accusations on several previous occasions, a fact that Malofiy was quick to document and undoubtedly had some influence on the judge’s decision to progress the case.
But of the 16 cases brought against Zeppelin, half were dismissed without any further action. Of the those where a settlement was agreed, all bar one applies to tracks from their first two albums: Led Zeppelin I, which was actually written and recorded by the New Yardbirds within a couple of months of the band’s formation and Led Zeppelin II, which was also released in 1969. Given the constraints of being a blues-rock based band, it’s hardly surprising that they strayed into existing territory: naively paying tribute to their influences, using similar lyrics here and there.
In other bands, this is forgiven. But when you’re the biggest band in the world, you attract a lot of attention – and a lot of sour grapes. Led Zeppelin’s detractors talk about them like they were a bunch of musical pirates – but has there ever been a single piece of work that is totally devoid of some kind of influence? People have been hearing it, seeing it, reading it and then nicking it, since before water was invented.
The creative process is a complex animal. When you write your first songs, they are little more than clones of tracks you love, performed in the style of artists you love. Even when you grow and, hopefully, discover a sound and style of your own, you still never manage to shake those influences. Listen to the most groundbreaking and innovative music from artists who are described as trail-blazers, and you can hear that – at its foundation – their work is awash with influences. Maybe it’s disguised by sonic or technological wizardry, but they’re there, plain as day. So at what point does influence end and plagiarism begin?
It’s an area addressed by Ian Anderson of Jethro Tull in an interview he gave about the Eagles’ Hotel California and its more than passing resemblance to Tull’s We Used to Know. It’s a situation that mirrors the Stairway case closely, as the two bands had shared a stage. (The Eagles had supported Tull, much as Led Zeppelin had with Spirit, a point that makes up part of the plaintiff’s evidence.)
Anderson commented on the similarities between the two songs: “It was maybe something they picked up on subconsciously and introduced that sequence into Hotel California but it’s not plagiarism, it’s just the same chord sequence, in a different time signature, a different key and a different context… I feel flattered…but it’s difficult to find a sequence that hasn’t been used. It’s almost a mathematical certainty that you’re going to crop up with the same thing sooner or later. There’s certainly no bitterness or plagiarism. I accept it as a tribute.”
In the history of plagiarism litigation, it’s hard to imagine that there has ever been anything as important as the Stairway To Heaven lawsuit. Forget the unique stature of the song itself (a song that has spent most of its life at the top of the ‘Greatest Songs of All Time’ polls, its epic structure providing a template for some of the greatest anthems in rock and pop history: Free Bird, Bohemian Rhapsody, Wanted Dead Or Alive and many others), or the reputation of Led Zeppelin (a band who picked up where The Beatles left off with a decade-and-a-bit-long musical journey that drew upon folk, jazz, reggae, eastern, African, Celtic, funk, country and classical without ever compromising their blues-rock status), forget all that.
Because perhaps most important of all, is how the outcome of this case will affect the future of music in general.
The 21st century has not been kind to music makers. Issues like piracy, downloads, streaming, iTunes, YouTube, Spotify have all been the focus of the ever-decreasing circle that the music industry has become.
Now add plagiarism to that list. Not only are artists struggling to understand how they can make money out of their recorded works but they now need to worry about who might lay claim to a proportion of any potential earnings. And never mind all the songs that have come before – what about the songs yet to be written?
Busch and Milofiy may be the spearhead of a new wave of litigation, further lining the already-bulging pockets of the legal profession. If “vibe” is on trial where will it end? Will Motorhead be sued for paying tribute to the Ramones in R.A.M.O.N.E.S? Will the Ramones have to pay out to Brian Wilson for the debt they owe the Beach Boys? Will Bob Dylan spend his closing years in continuous litigation?
Sounds ridiculous? Well, that’s because it is. But disaster may well be looming sooner than anyone could possibly imagine.