(Bloomberg) -- The song’s not quite the same, but the opening of “Stairway to Heaven” is close enough to an obscure 1960s album track to warrant a trial that might rewrite the history of rock ’n’roll over a song-writing credit.
Led Zeppelin founders Jimmy Page, 72, and Robert Plant, 67, are expected to recount the origins of the song more than 40 years ago at a trial scheduled to start May 10 in Los Angeles. Lawyers for the two rockers have asked the judge to exclude evidence of the “adverse effects of drinking or drug use in the 1960s or later” as a factor in their allegedly flawed recollection of whether they were familiar with a song they are accused of copying.
U.S. District Judge R. Gary Klausner ruled Friday that a jury must decide whether the British rockers ripped off the opening licks of “Taurus,” which was recorded by a band named Spirit that in 1969 played concerts with Zeppelin. Although there was no evidence of “striking similarity,” the judge said, there was enough evidence offered for a jury to weigh whether there was “substantial similarity.”
Lawyers for Page and Plant didn’t immediately respond to an e-mail seeking comment on the ruling.
The lawsuit was brought in 2014, 43 years after “Stairway to Heaven” was released, on behalf of the late Randy California, Spirit’s guitarist and the composer of “Taurus.”
A trust created by his mother and administered by a former rock journalist alleged in the complaint that Page lifted the opening guitar plucks in “Stairway” from an instrumental that California had written in 1966 for his girlfriend. According to trustee Michael Skidmore, Page asked California to teach him the chords to “Taurus” in 1969, when the two groups would sometimes tour together.
Page, Plant, Zeppelin bassist John Paul Jones and Warner Music Group Corp. asked U.S. District Judge R. Gary Klausner in February to throw out Skidmore’s lawsuit, arguing that California was a songwriter for hire who didn’t own the copyright to his composition. Even if he did, they argued, the similarity between “Stairway to Heaven” and “Taurus” was limited to a “descending chromatic scale of pitches” that have been known for centuries and are too commonplace in music to be entitled to copyright protection.
Klausner parsed details of harmonics and rhythm in his April 8 ruling concluding the dispute couldn’t be settled without a trial.
“While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure,” Klausner said. “For example, the descending bass line in both ‘Taurus’ and ‘Stairway to Heaven’ appears at the beginning of both songs, arguably the most recognizable and important segments.”
“Stairway to Heaven” is one of the most successful rock songs of all time, having earned hundreds of millions of dollars. Since Led Zeppelin’s first album in 1969, the band was known to have drawn inspiration from other musicians, some of whom brought legal challenges many years later. As a result, the band has been forced to alter the credits and redirect portions of royalties for some of its biggest songs, including “Whole Lotta Love” and “Babe I’m Gonna Leave You.”
The statute of limitations for civil copyright infringement under U.S. law is three years, but courts often interpret that limit as only restricting back royalties to the previous three years, not barring old infringement claims.
A remastered version of Led Zeppelin IV, the album containing “Stairway to Heaven,” was released by Atlantic Recording Corp. in 2014.
To show infringement under U.S. copyright law, a claimant generally needs to demonstrate that an original work was copied to make a new work that was substantially similar, and that the copier had access to the original work.
Randy California didn’t complain publicly about “Stairway to Heaven” until a 1997 magazine interview. He drowned that year rescuing his 12-year-old son from a rip current in Hawaii.
The judge threw out what he called an inventive but legally baseless claim of “falsification of rock ’n’ roll history.”
The case is Skidmore v. Led Zeppelin, 15-cv-03462, U.S. District Court, Central District of California (Los Angeles).