Zeppelin’s ‘Stairway’ copyright hearing heading for mistrial?

The civil trial in Los Angeles over the similarity of the opening sequence of Led Zeppelin’s Stairway To Heaven and US band Spirit’s 1968 instrumental Taurus, could be declared a mistrial on a technicality after one day.

Francis Alexander Malofiy, lawyer for the trust for the late guitarist and composer Randy California, who wrote the two minute and 37 second instrumental, attempted to prove the similarity of the two songs with a video of a session player performing both on his acoustic guitar.

Malofiy had in his opening statements described Stairway songwriters, singer Robert Plant and guitarist Jimmy Page as “incredible performers, incredible musicians” but they “covered other people’s music and tried to make it their own.”

Zeppelin’s lawyer Peter Anderson objected to the video, claiming it had not been noted in the case exhibit list. U.S. District Court judge R. Gary Klausner agreed, warning, “If it’s not been received in the evidence, it’s the basis of a mistrial.”

Nevertheless, Malofiy went on to screen the video, followed by footage of Page and Plant playing the opening 2.14 minutes of Stairway. Whether Zeppelin’s lawyer will pick up the ‘mistrial’ option remains to be seen.

Page and Plant have long maintained that the song suddenly flowed out of them while they were writing in Bron-Yr-Aur, a remote cottage in Wales for the Led Zeppelin IV album. Both maintain they never heard Taurus. In 1968, the two bands played some US shows together.

California (real name Randy Wolfe) drowned saving his son from a riptide in 1997. The case is not so much about getting damages for California (the trust is only asking for US$1 million) but getting him a credit on the song. It would entitle him to future royalties of a song that has continued to sell long after its original release. “Give credit where credit is due,” Malofiy told the jury.

According to Bloomberg Businessweek, it earned $562 million by 2008. It continues to be played on radio worldwide: as of 2000, it had been broadcast in the US three million times (or 44 years if played back to back). The sheet music for Stairway, which has already sold 1 million copies, continues to shift 15,000 a year.

Led Zeppelin IV is said to have sold 37 million worldwide, of that 23 million in the US alone where it is the fourth top selling album of all time. It’s estimated to have sold close to 560,000 in Australia, where it peaked at #2.

Anderson, Zeppelin’s lawyer, told the court that California’s trust does not even own Taurus – and that it was introduced into the lawsuit by “unclean hands” after royalties were denied to California’s son. Among his defence strategy was that the descending chromatic line in both songs were “commonplace” in songs since the 1600s, that any similarity came from Zeppelin using musical elements “that cannot be copyrighted”. He maintained Page and Plant “created Stairway to Heaven independently without resort to Taurus or without copying anything in Taurus”.

Judge Klausner ruled that California’s lawyer cannot introduce into the case any testimony of how Zeppelin were serial plagiarists early in their career, including paying off other writers over allegedly stealing for Whole Lotta Love and Boogie With Stu.

Both Page and Plant were in Courtroom 850 in the Edward Roybal Federal Building in downtown Los Angeles, dressed in suit and tie and their white hair tied back in ponytails. They came early and sat together.

The case has created waves before it began. Seven of the original 14 jury member were dropped after it was revealed they were major Zeppelin fans. To stop other fans from recording the hearing to post online, the judge banned laptops, cellphones, cameras and pens in the court room. Two who disobeyed were thrown out of court.

California’s place tried to stop testimony from musicologist Lawrence Ferrara, saying he had earlier been hired to test out the similarity of the two songs for a publisher and had a conflict of interest, and charged that Dr. Ferrara’s testimony could be “bought.”