![Robert Plant and Jimmy Page of Led Zeppelin]()
On June 14 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 signalled 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
Bloomberg Businessweek published a fascinating profile of Frances Malofiy, the plaintiff's lawyer. He's somewhat of a renegade who keeps his legal papers in Fender guitar cases and is fighting suspension in Philadelphia federal court.
Emails sent between the opposing sides' lawyers ahead of the trial were published online, and it shows that Malofiy asked whether Page would agree to perform part of "Stairway to Heaven" during the trial. Kobulnick says that "sounds like the unusual tactics of the renegade lawyer. I think that’s [the lawyer] trying to make a theatrical performance in front of the jurors. I wouldn’t think that anybody would actually be playing the song in the courtroom, not live."
The emails show Led Zeppelin's lawyers becoming exasperated as they deal with Malofiy. And his renegade nature is also evident in the original 2014 complaint in the case, which was filed using a typeface similar to one used by Led Zeppelin.
I sympathise with the defendant’s counsel that they’ve been dealing with that type of an opposing counsel. Just looking at the complaint, I understand what you’re saying. I looked at the complaint this morning, oh my god, the fonts on it, the big signature in his red [pen.]
When you see a complaint like that, that’s not normally how complaints are drafted. That was a 40-page document with hundreds of paragraphs of stuff in it, a lot of which weren’t necessary. To me it looked more like something you would post online as a diatribe or your personal belief of the injustices that have gone on. It sounds like an article that you were writing, your first amendment, free speech kind of thing. It did not read to me like a normal complaint. A complaint is not drafted like that. A complaint isn’t meant to be for the public to read and comment on. That’s not what a complaint is about at all. The complaint is just a notice, there’s no fancy fonts in it normally.
John Paul Jones' declaration is under seal, but that's not because he's no longer a defendant
![John Paul Jones of Led Zeppelin]()
You can read Page and Plant's declarations online, but Led Zeppelin bassist and keyboard player John Paul Jones' declaration was placed under seal and not released. He's no longer a defendant in the case, but that's not the reason for his declaration staying private. Here's Kobulnick to explain:
Typically declarations are placed under seal because they contain information that is not suitable for public record. Sometimes it could have a lot of things in there that are proprietary or confidential. Most frequently when declarations are placed under seal, they have personal information including financial information, maybe their own personal asset information.
In other types of cases when documents are filed under seal it’s because they contain proprietary information to a company’s operations or business, close to a trade secret, customer information, customer names, data like that. Things that just would not be appropriate to post on the web for everybody to download and look at.
A new witness is going to cause a 'credibility test'
The plaintiff's lawyer was contacted by an elderly British photographer named Mike Ware who said he was at a Spirit show in 1970 and saw Robert Plant in the front row enjoying the music. That's very different to the story outlined in Plant's declaration, where he admitted that he was at the show, but said that he wasn't listening and was at the back talking with his friends. Kobulnick says that the emergence of the new witness will cause a "battle of the witnesses" and a "credibility test" where the jury will have to decide who to believe.
Paid observers will watch the jury's reactions
Here's something you may not know about court cases: There are often people in the public gallery who are paid to closely watch the members of the jury to see how they react to different witnesses. "There will be people that work with the lawyers that are not on the counsel table that are sitting in the gallery and the rows in the back who are there to observe the trial," Kobulnick says. "Part of what they’re observing is the jurors’ reactions to each witness’ testimony and then they regroup during breaks and at the end of the day."
"Those people that are observing are going to sit down with the lawyers and say ‘well, here’s what I noticed. Juror number two really didn’t think that witness was credible at all, you could tell juror number two absolutely did not buy anything that witness was saying. Juror number six was all over it, fully engaged, every word that came out of your expert’s mouth in the calculations of damages, was nodding her head. Absolutely with you on that. You’ve got juror six in your favour on that issue.’ That’s the kind of thing. It’s very strategic."
The two sides could settle during the trial
Kobulnick says that settlements can be agreed midway through a trial if both sides see that the case is going a certain way.
If both sides get that sense that it’s going to go in a certain direction, then that’s usually when you’ll see a last-minute settlement. If both sides, through their eyes and their people’s eyes, have concluded that the plaintiff is absolutely going to win this case, and the plaintiff is going to get a lot of money because they’re totally on board with everything that has been presented, then that might be a good reason for the defendant to agree to a settlement with the plaintiff for less money than the potential exposure if the jury comes back and finds willful infringement.
It’s still a substantial amount of money, but not the full amount that they’re asking for. It really depends on day by day, how the trial unravels. Just walking into it, I see no reason for the case to settle immediately, I think it will go through all the evidence. It could be that it does get to the jury’s decision.
There's a real chance that Led Zeppelin loses the case
![Robert Plant and Jimmy Page of Led Zeppelin]()
You'd be forgiven for thinking that a renegade lawyer going up against one of the biggest bands in the world in court only has a tiny chance of prevailing. But Kobulnick says that, actually, there's a real chance Malofiy wins.
"If one side had a much stronger case than the other it would have settled by now," Kobulnick says. "Juries can be very unpredictable, and they’re looking for a unanimous verdict here. It’s challenging as a plaintiff to get a unanimous verdict in your favour on these cases, it’s not impossible, but it is challenging. I’m not going to say that the plaintiff has no chance at all, that’s not right. Both the plaintiff and the defendant have a good opportunity here to prevail and they’re both going to put on their best evidence to do so."
$40 million in damages isn't a ridiculous claim
During his interview with Bloomberg's Vernon Silver, Malofiy suggests that his client is entitled to $40 million (£27 million) in damages from Led Zeppelin. Is that an insane figure to ask for? Kobulnick says no, it's not:
It’s not ridiculous. I’m sure they have a damages expert who is going to take the stand and walk the jury through that analysis on the math. In a copyright case the plaintiff is entitled to recover one of several things. They can get actual damages, meaning its lost profits plus the defendant’s profits together. Or it can get statutory damages. Statutory damages range in the US from $750 to $30,000 per work infringed unless there’s a finding of willfulness. If a jury finds willful infringement then that award can be increased up to $150,000, which is what he put in his complaint for one work that was infringed.
Here you’re talking about millions of sales, so that’s going to be far greater than the statutory damages. The plaintiff is not looking for only $150,000 under the statutory damages, the plaintiff is looking for actual damages plus defendants’ profit. That’s why the numbers do get very big because we’re talking about something that has been in existence for years and many records have been sold. The $40 million figure isn’t off the charts when you think about the amount of profits over time that have been made.
Don’t forget the actual damages. If the plaintiff can prove that had the defendant not taken the music, if that was an infringement, then the plaintiff is going to argue that all those sales of the "Stairway" song should have been their sales, because it’s the same song, it’s their music. You don’t get to double dip, but that’s one of the arguments that they’re going to make through the eyes of their expert. Their expert’s job is to educate the jury on all that.
But a loss for Led Zeppelin won't mean other musicians come forward to sue them
We asked Kobulnick whether a settlement or loss for Led Zeppelin at the trial would prompt other bands to come forwards and accuse Led Zeppelin of copyright infringement. But it doesn't sound like that's going to happen:
It doesn’t necessarily open the door to something else. There’s always going to be people out there that are more litigious that want to file lawsuits. I wouldn’t say that a finding by the jury of infringement in this case is going to open up the door to a lot more similar cases being filed against Led Zeppelin per se.
[It’s the] same thing with the settlement. Settlements are business decisions, settlements do not mean I’ve admitted that I’ve done something wrong. A settlement means that we’re going to not chance it to the jury to make a decision, we agree to disagree on whether anyone did anything wrong but we’re making a practical business decision, we’re going to pay this much to be done with this case and not test the waters. Both sides are compromising when there’s a settlement. The plaintiff thinks they’re entitled to more than they’re getting in the settlement, the defendant believes they shouldn’t have to pay anything if this case were to get litigated all the way through the jury’s verdict or an appeal but as a business decision they’re going to pay something to be done with it, to resolve the case.
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