Breaking news: SCOTUS casts shadow on Led Zep defence to Taurus claim

Katfriend and occasional guest blogger Lucas Michels (Ironmark Law Group PLLC) has again furnished readers of this weblog with some fascinating and highly topical food for thought -- this time with regard to what some music critics would appear to have established as a copyright infringement long ahead of any judicial ruling on the subject (eg Guitar World Magazine, April 1997, which writes: "(Randy) California's most enduring legacy may well be the fingerpicked acoustic theme of the song "Taurus," which Jimmy Page lifted virtually note for note for the introduction to "Stairway to Heaven").  This note brings together the longevity of copyright and the doctrine of equitable doctrine of laches, a doctrine which can do much to scupper the attempts of copyright owners to obtain relief for historical copyright infringement.  Lucas writes:

Led Zeppelin’s Upcoming Copyright Infringement Lawsuit May Be Dramatically Impacted By Recent US Laches Developments

Led Zeppelin IV

It was reported late last week that legendary British rock band Led Zeppelin was in the midst of being sued for copyright infringement in the US for what is arguably the band's most-recognized song, Stairway to Heaven (“Stairway”). Mark Andes, bass player of the 1960s Southern California rock band Spirit, claims that the members of Led Zeppelin copied portions of Spirit’s instrumental track Taurus, which was allegedly incorporated into Stairway’s instrumental introduction. Andes claims that members of Led Zeppelin allegedly heard Taurus while on tour with Spirit in the US between 1968 and 1969. Further, he attests that members of Spirit were aware that portions of their song were allegedly incorporated into Stairway for decades following Stairway’s official release on the album Led Zeppelin IV in 1971. The trust of Spirit’s deceased guitarist Randy California and Andes (collectively “Spirit”) are now reportedly filing a lawsuit against the members of Led Zeppelin for copyright infringement, including an injunction against a soon-to-be re-release of Led Zeppelin IV, which includes Stairway.

One of this Kat's first albums ...

Although Spirit’s case hinges on numerous factors, including whether Stairway is considered a derivative work of Taurus, a particularly interesting issue arising out this dispute is whether a laches defence will bar Spirit’s legal and equitable claims. In the US and many other common law jurisdictions, the equitable doctrine of laches has traditionally barred claims such as specific performance and injunctions, providing an absolute defence to claims which have not been pursued due to an unreasonable delay by a plaintiff that prejudices a defendant. However, the ninth federal US circuit has extended the laches doctrine to bar both legal and equitable claims (see DANJAQ, LLC v Sony Corp., 263 F.3d 942, 962 (9th Cir. 2001)), while other federal circuits reject laches as a absolute defence to copyright legal claims: see Lyons P’ship LP v Morris Costumes Inc., 243 F.3d 789, 797 (4th Cir. 2001) and Chirco v Crosswinds Communities Inc., 474 F.3d 227, 234 (6th Cir. 2007).

Before today (on which see below), laches may have barred Spirit’s legal and equitable claims if Spirit’s lawsuit was brought in the ninth circuit, and if Led Zeppelin could show that Spirit unreasonable delayed their lawsuit and that doing so prejudiced Led Zeppelin. This would have been likely possible based on Spirit’s extended knowledge of Led Zeppelin’s alleged infringement, the commercial success of Stairway, and the length of Spirit’s delay to file a lawsuit. A delay in commencing litigation has been found impermissible

“when its purpose is to capitalize on the value of the alleged infringer’s labor, by determining whether the infringing conduct will be profitable.” DANJAQ, LLC, 263 F.3d at 954. 

Next in line for
legal action? 

Further, if a delay in seeking litigation is lengthy, prejudice is more likely to have occurred and less proof of prejudice will be required:  Miller v Glenn Miller Prod., Inc., 454 F.3d 975, 1000 (9th Cir. 2006). Although Spirit claimed that they did not file a lawsuit because they did not have the financial resources to do so and because they felt that the statute of limitations had run, the fact that Spirit knew of Led Zeppelin’s alleged infringement for decades and chose not to enforce their rights, coupled with the massive commercial success of Stairway (royalties and record sales last totaled at $562 million - £334 million), may have given Led Zeppelin an evidentiary advantage to establishing laches against Spirit’s claims in the ninth circuit.

Yet there was a development at the time of print that adds a compelling twist to this Led Zeppelin laches saga. The US Supreme Court (SCOTUS) ruled today in Petrella v Metro-Goldwyn-Mayer, Inc. that laches cannot bar legal claims for actual damages or profits arising out of copyright infringement (17 U.S.C. § 504(b)) that are available within the three-year statute of limitations period under the U.S. Copyright Act. 572 U.S. ____ (2014), 11, 19-22. However, SCOTUS did not eliminate laches as an absolute defence for equitable claims in Petrella.

So what does Petrella mean for Spirit’s case? Well, it means that Led Zeppelin may still potentially utilize laches to bar the equitable injunction against the re-release of Led Zeppelin IV. Yet, they would likely be unable to assert a laches defence to any claims of actual damages or profits arising out of Led Zeppelin’s alleged copyright infringement, regardless of which federal circuit Spirit’s lawsuit is filed. Although Spirit will likely not be able to seek the vast bulk of the half billion dollars in revenue Stairway has accrued due to statute of limitations restrictions, it does create financial considerations the members of Led Zeppelin must evaluate. Only time will tell as to how laches will actually impact Spirit’s lawsuit against Led Zeppelin.

This Kat is lost in the mists of distant memory at this point. Spirit's album The Family that Plays Together was in his collection while he was still a sixth-former. At a pinch he can still sing Dream within a dream and I got a line on you, even at a gap of XLVI years.  His Led Zeppelin collection stopped at Led Zep III (though II is still his favourite). If ever he heard Taurus he is sure that he would have forgotten it, since it is quite forgettable to anyone who heard it before Stairway came out.

Merpel is more interested in the law than in an old Kat's record collections and recollections. She reminds readers that laches has featured before on this weblog, in relation to a track of arguably greater pedigree than even Stairway -- none other than A whiter shade of pale (see Katpost on the House of Lords' ruling here).

Strange but true: Taurus is the Latin word for "bull".  Frank Petrella's action against MGM relates to Raging Bull.