Jimmy Page, Robert Plant, and John Paul Jones—the remaining members of Led Zeppelin—along with several recording industry defendants, prevailed in federal court on June 23 in a copyright jury trial over the introduction of the band’s legendary song, “Stairway to Heaven.” The band had been accused of copying parts of the song “Taurus” by the rival band Spirit, with trial testimony recounting the days when Led Zeppelin and Spirit played festivals in the late 1960s and early 1970s.

UNITED KINGDOM - DECEMBER 01: Photo of LED ZEPPELIN; L-R: John Paul Jones, Jimmy Page, Robert Plant, John Bonham - posed, group shot, sitting on car bonnet - first photo session with WEA Records in London in December 1968. (Photo by Dick Barnatt/Redferns)
L-R: John Paul Jones, Jimmy Page, Robert Plant, John Bonham – first photo session with WEA Records in London in December 1968. (Photo by Dick Barnatt/Redferns)

The trial may be over, but a dispute over attorney’s fees and the newly clarified standards announced earlier in June by the U.S. Supreme Court could keep the case in the news for some time to come.

The trial

The case went to trial because U.S. District Judge R. Gary Klausner of the Central District of California denied defendants’ motion for summary judgment in April and ruled, under the summary judgment standard following review of competing expert testimony, that there were sufficient similarities between the two songs for a jury to decide the disputed issues. See Order re: Defendants’ Motion for Summary Judgment (Doc. 159), Case No. 2:15-cv-03462 (C.D. Cal., Apr. 8, 2016).

Among the more notable parts of the April ruling, the court also held that the plaintiffs filed suit within the 3 year statute of limitations based on the 2014 release date of a remastered version of “Stairway to Heaven.”

Ultimately, the jury answered “no” on the verdict form when asked if the original elements of “Taurus” were “extrinsically substantially similar to Stairway to Heaven.” See Verdict Form (Doc. 263), Case No. 2:15-cv-03462 (C.D. Cal., June 23, 2016).

The issue of attorneys’ fees

The verdict ended the jury’s role in the case, but the trial court will be given the opportunity to decide if the defendants will be allowed to recover their attorney’s fees as the prevailing party under §505 of the Copyright Act. On July 7, 2016, Defendant Warner Chappell Music, Inc. filed its motion for attorneys’ fees seeking $613,474 and a separate motion seeking $179,697 in costs (for a total of $793,153), which are both for hearing on August 8, 2016. See Mem. in Support of Mot. for Attorneys’ Fees (Doc. 293-1) (the “Motion for Attorneys’ Fees”), Mem. in Support of Mot. for Additional Costs (Doc. 295-1), Case No. 2:15-cv-03462 (C.D. Cal.). Notably, the individual band members did not file a request to recover their fees for separate New York counsel.

The U.S. Supreme Court recently provided additional guidance on the standards district courts should follow when awarding attorney’s fees under § 505 in Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. ___ (2016). The Court held that district courts should give substantial weight to the objective reasonableness of the losing party’s position when exercising its discretion under § 505, but that “the court must also give due consideration to all other circumstances relevant to granting fees; and it retains discretion, in light of those factors, to make an award even when the losing party advanced a reasonable claim or defense.” Id.

The overall reasonableness and surrounding circumstances of the Led Zeppelin case raise interesting possibilities for attorney’s fees under the new Supreme Court ruling. Simply prevailing is not enough, as the Supreme Court reiterated its prior holding from Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), that attorney’s fees may not be granted as a matter of course to the winner at trial.

On initial analysis, it appears that the district court in the Led Zeppelin case did not believe that the plaintiffs were entirely unreasonable in their substantive positions since it denied defendants’ motion for summary judgment, as well as a motion for judgment as a matter of law during trial. Plaintiffs can be expected to forcefully argue that they diligently investigated their case, obtained credible expert testimony, and that the court already ruled at least twice that the claims were reasonable enough to raise issues of fact in the minds of fair people.

However, further examination provides grounds for anticipating that the defendants may have a basis for recovering fees. As a fundamental matter, it can argued that simply having enough evidence to get to a jury should not prevent an award of attorney’s fees. Another rule from Fogerty v. Fantasy reiterated in the Kirtsaeng opinion is that prevailing plaintiffs and defendants must be treated equally when awarding fees at the conclusion of a case. The standards which govern pre-verdict dispositive motions are strongly slanted in favor of plaintiffs (the party with the burden of proof) in most instances, and a rule which disfavors awarding fees in cases where summary judgment and other pre-verdict motions were denied would be unfair to defendants.

Media reports provided several examples of actions by plaintiffs and their counsel which could support a finding of unreasonableness. The Motion for Attorneys’ Fees goes into much greater detail. Substantively, one of the most significant issues is that plaintiffs based a large part of their argument on the recorded versions of the two songs, while the jury was only allowed to hear an expert play acoustic guitar versions based on the sheet music deposit copies on file with Copyright Office. Plaintiffs pursued the comparison of the sound recordings with expert reports to which the defendants were forced to respond. Ultimately, the evidence was not allowed. The Motion for Attorneys’ Fees makes a persuasive case that plaintiffs wasted a great deal of time and money attempting to try a case based on proof they should have known could not be admitted. Additionally, despite finding a way to meet the statute of limitations, the passage of time—over 40 years—found its way into the Motion for Attorneys’ Fees, along with a number of other arguments.

The Motion for Attorneys’ Fees makes the case that their defense strongly supports the purposes of the Copyright Act. Among other reasons, it notes the fame of the song and that the relief sought by the plaintiffs included permanent injunctive relief to cease all sales of “Stairway to Heaven,” as well as impoundment and destruction of all sheet music and sound recordings. To emphasize the point, the Motion for Attorneys’ Fees reminds the district court that the plaintiffs acknowledged that “Stairway to Heaven” was one of the greatest songs ever written, yet still tried to “wipe [it] off the map.” The Motion for Attorneys’ Fees contends that the defendants advanced the purposes of the Copyright Act by litigating such a matter to final conclusion and preserving a great work for the benefit of the public.

The behavior of counsel for plaintiffs during trial culminated in a filing titled “Defendants’ Objections to Plaintiff’s Trial Conduct” in the record. Doc. 252, Case 2:15-cv-03462 (C.D. Cal. June 20, 2016). In the filing, the Led Zeppelin case defendants complained of matters such as improper questioning of witnesses, violations of court orders and the motion in limine, and public statements which were allegedly false and could prejudice the jury.

Prior to trial, counsel for plaintiffs generated attention with motions to compel attendance of Jimmy Page and Robert Plant on the first day of trial, and heated accusations of a somewhat personal nature directed toward an expert for Led Zeppelin. Part of plaintiffs’ trial strategy also appeared to include allegations related to past substance abuse and claims of copying other songs by Led Zeppelin, which ultimately were not allowed. These tactics and many others make up a substantial part of the Motion for Attorneys’ Fees.

The Supreme Court in Kirtsaeng stated that objective reasonableness is only an “important factor” in determining fee applications, but that it is not controlling. Slip op. at 10. A range of considerations must still be considered beyond reasonableness, such as litigation misconduct and overaggressive assertion of copyright claims. Id. at 11. The ability of district courts to weigh all of these factors was a reason for the Supreme Court’s adoption of “objective reasonableness” over a competing approach. Id. at 9.

Commentary

The Led Zeppelin case presents a high profile example to watch soon after the Kirtsaeng opinion, in which there are plenty of issues and the district court’s direct experience could potentially justify a ruling in either direction. Of course, this requires that the attorney’s fees issue continue to be pressed forward by the prevailing party. The ability of the plaintiffs to pay over $600,000 in attorney’s fees, and a desire for closure could impact the decisions made on this issue going forward.