Case: 16-56057, 03/09/2020, ID: 11621937, DktEntry: 181-1, Page 1 of 73
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`MICHAEL SKIDMORE, as Trustee for
`the Randy Craig Wolfe Trust,
`Plaintiff-Appellant,
`
`
`
`v.
`
`
`LED ZEPPELIN; JAMES PATRICK
`PAGE; ROBERT ANTHONY PLANT;
`JOHN PAUL JONES; SUPER HYPE
`PUBLISHING, INC.; WARNER MUSIC
`GROUP CORPORATION;
`WARNER/CHAPPELL MUSIC, INC.;
`ATLANTIC RECORDING
`CORPORATION; RHINO
`ENTERTAINMENT COMPANY,
`Defendants-Appellees.
`
`
`
`
` No. 16-56057
`
`D.C. No.
`2:15-cv-03462-
`RGK-AGR
`
`
` No. 16-56287
`
`D.C. No.
`2:15-cv-03462-
`RGK-AGR
`
`
`OPINION
`
`MICHAEL SKIDMORE, as Trustee for
`the Randy Craig Wolfe Trust,
`Plaintiff-Appellee,
`
`v.
`
`
`WARNER/CHAPPELL MUSIC, INC.,
`Defendant-Appellant,
`
`
`
`
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`MICHAEL SKIDMORE, as Trustee for
`the Randy Craig Wolfe Trust,
`Plaintiff-Appellant,
`
`
`
`v.
`
`
`LED ZEPPELIN; JAMES PATRICK
`PAGE; ROBERT ANTHONY PLANT;
`JOHN PAUL JONES; SUPER HYPE
`PUBLISHING, INC.; WARNER MUSIC
`GROUP CORPORATION;
`WARNER/CHAPPELL MUSIC, INC.;
`ATLANTIC RECORDING
`CORPORATION; RHINO
`ENTERTAINMENT COMPANY,
`Defendants-Appellees.
`
`
`
`
` No. 16-56057
`
`D.C. No.
`2:15-cv-03462-
`RGK-AGR
`
`
` No. 16-56287
`
`D.C. No.
`2:15-cv-03462-
`RGK-AGR
`
`
`OPINION
`
`MICHAEL SKIDMORE, as Trustee for
`the Randy Craig Wolfe Trust,
`Plaintiff-Appellee,
`
`v.
`
`
`WARNER/CHAPPELL MUSIC, INC.,
`Defendant-Appellant,
`
`
`
`
`
`
`
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`
`2
`
`
`SKIDMORE V. LED ZEPPELIN
`
`and
`
`
`LED ZEPPELIN; JAMES PATRICK
`PAGE; ROBERT ANTHONY PLANT;
`JOHN PAUL JONES; SUPER HYPE
`PUBLISHING, INC.; WARNER MUSIC
`GROUP CORPORATION, ATLANTIC
`RECORDING CORPORATION; RHINO
`ENTERTAINMENT COMPANY,
`Defendants.
`
`Appeal from the United States District Court
`for the Central District of California
`R. Gary Klausner, District Judge, Presiding
`
`Argued and Submitted En Banc September 23, 2019
`San Francisco, California
`
`Filed March 9, 2020
`
`Before: Sidney R. Thomas, Chief Judge, and M. Margaret
`McKeown, William A. Fletcher, Johnnie B. Rawlinson,
`Carlos T. Bea, Sandra S. Ikuta, Mary H. Murguia,
`Jacqueline H. Nguyen, Paul J. Watford, Andrew D.
`Hurwitz and Bridget S. Bade, Circuit Judges.
`
`Opinion by Judge McKeown;
`Concurrence by Judge Watford;
`Partial Concurrence and Partial Dissent by Judge Ikuta
`
`
`
`
`
`
`
`
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`
`
`
`
`SKIDMORE V. LED ZEPPELIN
`
`3
`
`SUMMARY*
`
`Copyright
`
`
`
`
`The en banc court affirmed the district court’s judgment
`
`after a jury trial in favor of Led Zeppelin in a copyright
`action alleging that the opening notes of Stairway to Heaven
`infringed Taurus, a song written by guitarist Randy Wolfe
`and performed by his band Spirit.
`
`In Part I, the en banc court held that the 1909 Copyright
`
`Act, which does not protect sound recordings, rather than the
`1976 Copyright Act, controlled its analysis because the
`copyright at issue was for the unpublished musical
`composition of Taurus, which was registered in 1967. The
`scope of the copyright in the unpublished work was defined
`by the deposit copy, which in the case of Taurus consisted
`of only one page of music. Accordingly, it was not error for
`the district court to decline plaintiff’s request to play sound
`recordings of the Taurus performance that contained further
`embellishments or to admit the recordings on the issue of
`substantial similarity.
`
`In Part II, the en banc court held that proof of copyright
`
`infringement required plaintiff to show: (1) that he owned a
`valid copyright in Taurus; and (2) that Led Zeppelin copied
`protected aspects of the work. The en banc court explained
`that the second prong contains two separate components:
`“copying” and “unlawful appropriation.” A plaintiff may
`prove copying circumstantially by showing access and
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
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`SKIDMORE V. LED ZEPPELIN
`
`4
`
`“unlawful
` The hallmark of
`similarity.
`striking
`appropriation”
`is
`that
`the works share substantial
`similarities. Both an extrinsic and an intrinsic test must be
`satisfied for the works to be deemed substantially similar.
`
`In Part III, the en banc court addressed the district court’s
`
`exclusion of sound recordings of Taurus as relevant to prove
`access but too prejudicial because of the risk that the jury
`would confuse access with substantial similarity. The en
`banc court concluded that this evidentiary issue was moot
`because the jury found access.
`
`In Part IV, the en banc court addressed three jury
`
`instruction issues: (1) the failure to give an inverse ratio rule
`instruction; (2) the sufficiency of the court’s originality
`instructions; and (3) the failure to give a selection and
`arrangement instruction. In Part IV.A, joining the majority
`of circuits, the en banc court rejected the inverse ratio rule,
`which requires a lower standard of proof of substantial
`similarity when a high degree of access is shown. The en
`banc court overruled circuit precedent to the contrary. In
`Part IV.B, the en banc court held that the district court
`properly instructed the jury on originality. In Part IV.C.1,
`the en banc court concluded that the failure to give a
`selection and arrangement instruction would be reviewed for
`plain error. In Part IV.C.2, the en banc court held that the
`district court did not commit plain error. In Part IV.C.3, the
`en banc court held that the district court did not commit any
`error because plaintiff did not present a selection and
`arrangement theory at trial. In Part IV.C.4, the en banc court
`held that, even though the district court did not instruct the
`jury on selection and arrangement, its instructions, as a
`whole, fairly and adequately covered plaintiff’s argument for
`extrinsic similarity between Taurus and Stairway to Heaven.
`
`
`
`
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`5
`
`SKIDMORE V. LED ZEPPELIN
`
`
`
`In Part V, the en banc court held that the district court
`
`did not err in setting trial time limits, responding to a jury
`question, admitting expert testimony, or declining to award
`attorneys’ fees.
`
` Concurring, Judge Watford wrote that he joined the
`court’s opinion, with the exception of section IV.C, because
`he saw no reason to decide whether plaintiff adequately
`preserved his request for a selection-and-arrangement
`instruction when, even if such an instruction had been given,
`no reasonable jury could have found infringement.
`
` Concurring in part and dissenting in part, Judge Ikuta,
`joined by Judge Bea, wrote that she dissented from Part
`IV(B)
`to (C) because, without plaintiff’s requested
`instruction on selection and arrangement, the jury was
`deprived of the opportunity to consider plaintiff’s central
`theory of the case, and the instructions given to the jury were
`misleading.
`
`
`
`COUNSEL
`
`
`Francis Malofiy (argued) and Alfred Joseph Fluehr, Francis
`Alexander LLC, Media, Pennsylvania, for Plaintiff-
`Appellant.
`
`Peter J. Anderson (argued), Law Offices of Peter J.
`Anderson, Los Angeles, California; Helene M. Freeman,
`Phillips Nizer LLP, New York, New York; for Defendants-
`Appellees.
`
`Edwin F. McPherson and Tracy B. Rane, McPherson Rane
`LLP, Los Angeles, California, for Amici Curiae 123
`Songwriters, Composers, Musicians, and Producers;
`
`
`
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`
`SKIDMORE V. LED ZEPPELIN
`
`6
`
`Nashville Songwriters Association International (NSAI);
`and Songwriters of North America (SONA).
`
`Eugene Volokh, Mayer Brown LLP, Los Angeles,
`California; Danielle M. Aguirre and Erich C. Carey,
`National Music Publishers’ Association, Washington, D.C.;
`for Amici Curiae Recording Industry Association of
`America and National Music Publishers Association.
`
`Sean M. O’Connor, Center for the Protection of IP,
`Arlington, Virginia; Lateef Mtima and Steven D. Jamar,
`Institute for Intellectual Property and Social Justice, Inc.
`
`Professor Mark A. Lemley, Stanford Law School, Center for
`Internet & Society, Stanford, California, for Amici Curiae
`19 Intellectual Property Professors.
`
`Kenneth D. Freundlich, Freundlich Law, Encino, California,
`for Amici Curiae Musicologists.
`
`Joseph H. Hunt, Assistant Attorney General; Nicola T.
`Hanna, United States Attorney; Scott R. McIntosh and
`Daniel Tenny, Appellate Staff; Civil Division, United States
`Department of Justice, Washington, D.C.; Regan A. Smith,
`General Counsel and Associate Register of Copyrights;
`Jason E. Sloan, Assistant General Counsel; Jalyce E.
`Mangum, Attorney-Advisor; United States Copyright
`Office, Washington, D.C.; for Amicus Curiae United States.
`
`W. Michael Hensley, AlvaradoSmith, Santa Ana, California,
`for Amicus Curiae Pullman Group LLC and Structured
`Asset Sales LLC.
`
`
`
`
`
`
`
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`
`
`
`
`SKIDMORE V. LED ZEPPELIN
`
`7
`
`OPINION
`
`McKEOWN, Circuit Judge, with whom THOMAS, Chief
`Judge,
`FLETCHER,
`RAWLINSON, MURGUIA,
`NGUYEN, Circuit Judges, join in full, and with whom
`WATFORD, Circuit Judge, joins except as to Part IV.C, and
`with whom HURWITZ, Circuit Judge, joins except as to
`Parts IV.C.3 and IV.C.4, and with whom BADE, Circuit
`Judge, joins except as to Part IV.C.3:
`
`Stairway to Heaven has been called the greatest rock
`song of all time. Yet, hyperbole aside, nearly 40 years after
`the English rock band Led Zeppelin released its hit
`recording,
`the song
`is not
`impervious
`to copyright
`challenges. The estate of guitarist Randy Wolfe claims that
`Led Zeppelin and its guitarist Jimmy Page and vocalist
`Robert Plant copied portions of Taurus, a song written by
`Wolfe and performed by his band Spirit.
`
`This appeal stems from the jury’s verdict in favor of Led
`Zeppelin and a finding that the two songs are not
`substantially similar. Like the jury, we don’t need to decide
`whether Stairway to Heaven has a place in the annals of
`iconic rock songs. Instead, we address a litany of copyright
`issues, including the interplay between the 1909 and 1976
`Copyright Acts, the inverse ratio rule, the scope of music
`copyright, and the standards for infringement.
`
`The 1909 Copyright Act, which does not protect sound
`recordings, controls our analysis. The copyright at issue is
`for the unpublished musical composition of Taurus, which
`was registered in 1967. The unpublished work is defined by
`the deposit copy, which in the case of Taurus consists of only
`one page of music. We also join the majority of circuits in
`rejecting the inverse ratio rule and overrule our precedent to
`the contrary. Finally, we are not persuaded by the challenges
`
`
`
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`
`SKIDMORE V. LED ZEPPELIN
`
`8
`
`to jury instructions and various other evidentiary and trial
`rulings. We affirm the district court’s entry of judgment in
`favor of Led Zeppelin and related parties.
`
`BACKGROUND
`
`Randy Wolfe, professionally known as Randy
`California, wrote the instrumental song Taurus in 1966 or
`1967. He was a guitarist in the band Spirit. Spirit signed a
`recording contract in August 1967 and released its first
`eponymous album—which included Taurus—a few months
`later. Wolfe also entered into an Exclusive Songwriter’s and
`Composer’s Agreement with Hollenbeck Music Co.
`(“Hollenbeck”). In December 1967, Hollenbeck registered
`the copyright in the unpublished musical composition of
`Taurus, listing Wolfe as the author. As required for
`registration of an unpublished work under the 1909
`Copyright Act, which was in effect at the time, Hollenbeck
`transcribed Taurus and deposited one page of sheet music
`(the “Taurus deposit copy”), with the United States
`Copyright Office.
`
`Around the same time, across the Atlantic, another rock
`band, Led Zeppelin, was formed by Jimmy Page, Robert
`Plant, John Paul Jones, and John Bonham. Led Zeppelin
`released its fourth album in late 1971. The untitled album,
`which became known as “Led Zeppelin IV,” contained the
`now iconic song Stairway to Heaven. Stairway to Heaven
`was written by Jimmy Page and Robert Plant.
`
`It is undisputed that Spirit and Led Zeppelin crossed
`paths in the late 1960s and the early 1970s. The bands
`performed at the same venue at least three times between
`1968 and 1970. Led Zeppelin also performed a cover of a
`Spirit song, Fresh Garbage. But there is no direct evidence
`
`
`
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`SKIDMORE V. LED ZEPPELIN
`
`
`
`that the two bands toured together, or that Led Zeppelin band
`members heard Spirit perform Taurus.
`
`9
`
`Wolfe passed away in 1997. After his death, Wolfe’s
`mother established the Randy Craig Wolfe Trust (the
`“Trust”)1 and served as the trustee until she passed away.
`Neither Wolfe nor his mother filed a suit regarding Stairway
`to Heaven. Michael Skidmore became a co-trustee of the
`Trust in 2006.
`
`Fast forward forty-three years from the release of
`Stairway to Heaven to May 2014. Skidmore filed a suit
`alleging that Stairway to Heaven infringed the copyright in
`Taurus, naming as defendants Led Zeppelin, James Patrick
`Page, Robert Anthony Plant, John Paul Jones, Super Hype
`Publishing, and the Warner Music Group Corporation as
`parent
`of
`Warner/Chappell
`Music,
`Inc.
`(“Warner/Chappell”), Atlantic Recording Corporation, and
`Rhino Entertainment Co. (collectively “Led Zeppelin”).2
`One may wonder how a suit so long in the making could
`survive a laches defense. The Supreme Court answered this
`question in Petrella v. Metro-Goldwyn-Mayer, Inc., which
`clarified that laches is not a defense where copyright
`infringement is ongoing. 572 U.S. 663, 668 (2014).
`
`Skidmore alleged direct, contributory, and vicarious
`copyright infringement. He also sought equitable relief for
`a claim that he titled “Right of Attribution—Equitable
`
`1 Led Zeppelin does not challenge on appeal that all of Wolfe’s
`intellectual property rights, including the ownership interest in Taurus,
`were transferred to the Trust.
`
`2 The case was filed in the Eastern District of Pennsylvania and later
`transferred to the proper venue, the Central District of California.
`Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581, 589–90 (E.D. Pa. 2015).
`
`
`
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`SKIDMORE V. LED ZEPPELIN
`
`10
`
`Relief—Falsification of Rock n’ Roll History.” Skidmore’s
`claims are not based on the entire Taurus composition.
`Rather, Skidmore claims that the opening notes of Stairway
`to Heaven are substantially similar to the eight-measure
`passage at the beginning of the Taurus deposit copy:
`
`
`
`The claimed portion includes five descending notes of a
`chromatic musical scale. These notes are represented on the
`piano as a set of adjacent black and white keys, from right to
`left. The beginning of Stairway to Heaven also incorporates
`a descending chromatic minor chord progression in A minor.
`However, the composition of Stairway to Heaven has a
`different ascending line that is played concurrently with the
`descending chromatic line, and a distinct sequence of pitches
`in the arpeggios, which are not present in Taurus.
`
`Led Zeppelin disputed ownership, access, and
`substantial similarity. Led Zeppelin also alleged affirmative
`defenses, including independent creation, unclean hands,
`and laches.
`
`
`
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`
`
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`SKIDMORE V. LED ZEPPELIN
`
`11
`
`At the close of discovery, Led Zeppelin moved for
`summary judgment. The district court granted the motion in
`part and denied it in part. The district court dismissed the
`claims against defendants John Paul Jones, Super Hype
`Publishing, and Warner Music Group because they had not
`performed or distributed Stairway to Heaven within the
`three-year statute of limitations period preceding the filing
`of the complaint. The district court also granted summary
`judgment to Led Zeppelin on Skidmore’s “Right of
`Attribution—Equitable Relief: Falsification of Rock n’ Roll
`History” claim. Although the claim was “creatively termed”
`and “inventive” according to the district court, a right of
`attribution claim under the Copyright Act extends only to
`visual arts.
`
`The district court also ruled that under the 1909 Act, the
`scope of the copyright was circumscribed by the musical
`composition transcribed in the Taurus deposit copy. Thus,
`only the one-page Taurus deposit copy, and not a sound
`recording, could be used to prove substantial similarity
`between Taurus and Stairway to Heaven.
`
`The district court granted Led Zeppelin’s motion in
`limine to exclude Taurus sound recordings and expert
`testimony based on those recordings. The district court
`again concluded that the Taurus deposit copy, rather than
`any recordings of Spirit’s performance of Taurus, formed
`the sole benchmark for determining substantial similarity.
`The district court found that there were triable issues of fact
`relating to ownership, access, substantial similarity, and
`damages.
`
`Against the backdrop of these rulings, the trial lasted five
`days. Two key issues predominated: access to Taurus by
`Led Zeppelin band members and substantial similarity.
`
`
`
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`12
`
`
`SKIDMORE V. LED ZEPPELIN
`
`On the access question, the district court allowed
`Skidmore to play various sound recordings of Taurus for
`Page outside of the presence of the jury. Skidmore then
`examined Page on access in front of the jury. Page testified
`that he owned “a copy of the album that contains ‘Taurus,’
`. . . in [his] collection,” while denying “any knowledge of
`‘Taurus.’”
`
`The substantial similarity question pitted two expert
`musicologists against each other. Skidmore’s expert,
`Dr. Alexander Stewart, analyzed, one by one, five categories
`of similarities. Dr. Stewart acknowledged that a chromatic
`scale and arpeggios are common musical elements. But he
`found Taurus and Stairway to Heaven to be similar because
`the descending chromatic scales in the two compositions
`skip the note E and return to the tonic pitch, A, and the notes
`in the scale have the same durations. Then he pointed to
`three two-note sequences—AB, BC, and CF#—that appear
`in both compositions. In his view, the presence of successive
`eighth-note rhythms in both compositions also made them
`similar. Finally, he testified that the two compositions have
`the same “pitch collection,” explaining that certain notes
`appear in the same proportions in the beginning sequence of
`both works.
`
`In sum, Dr. Stewart claimed that five musical elements
`in combination were copied because these elements make
`Taurus unique and memorable, and these elements also
`appear in Stairway to Heaven. Skidmore’s closing argument
`reinforced these points. Neither Dr. Stewart nor Skidmore’s
`counsel argued that the categories of similarities were
`selected and arranged to form protectable expression in the
`design, pattern, or synthesis of the copyrighted work. Nor
`did they make a case that a particular selection and
`
`
`
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`SKIDMORE V. LED ZEPPELIN
`
`
`
`arrangement of musical elements were copied in Stairway to
`Heaven.
`
`13
`
`Led Zeppelin’s expert, Dr. Lawrence Ferrara, testified
`that the two compositions are completely distinct. To
`highlight the marked differences in the compositions, he
`presented the following exhibit, which juxtaposed the
`claimed portion of Taurus against Stairway to Heaven:3
`
`
`
`Dr. Ferrara testified that the similarities claimed by
`Skidmore either involve unprotectable common musical
`elements or are random. For example, Dr. Ferrara explained
`that the similarity in the three two-note sequences is not
`musically significant because in each song the sequences
`
`
`3 The duration of the notes in the Taurus deposit copy are halved in
`this exhibit to allow a side-by-side comparison of the two compositions.
`
`
`
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`SKIDMORE V. LED ZEPPELIN
`
`14
`
`were preceded and followed by different notes to form
`distinct melodies. He described the purported similarity
`based on these note sequences as akin to arguing that “crab”
`and “absent” are similar words because they both have the
`letter pair “ab.” He also testified that the similarity in the
`“pitch collection” is not musically meaningful because it is
`akin to arguing that the presence of the same letters in
`“senator” and “treason” renders the words similar in
`meaning.
`
`At the close of trial, the district court discussed with
`counsel the intended jury instructions. The district court did
`not give the proposed instructions on the inverse ratio rule
`and
`the selection and arrangement of unprotectable
`elements. Skidmore objected to the district court’s decision
`to omit an inverse ratio instruction but did not do so as to the
`omitted selection and arrangement instruction.
`
`The jury returned a verdict for Led Zeppelin. In special
`interrogatories, the jury found that Skidmore owned the
`copyright to Taurus and that Led Zeppelin had access to
`Taurus, but that the two songs were not substantially similar
`under the extrinsic test. Following the verdict, the district
`court entered a judgment and an amended judgment.4
`Skidmore did not
`file any post-judgment motions
`challenging the verdict, but timely appealed from the
`amended judgment.
`
`Significantly, Skidmore does not make a substantial
`evidence claim. Instead, he focuses on a handful of legal
`
`4 The district court amended the judgment to include all defendants,
`including those to whom the district court granted summary judgment.
`Skidmore appeals from the amended judgment related to Led Zeppelin
`and related parties, but waived any argument regarding the defendants
`who prevailed at summary judgment.
`
`
`
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`15
`
`SKIDMORE V. LED ZEPPELIN
`
`
`
`issues, challenging: (1) the ruling that substantial similarity
`must be proven using the copyright deposit copy; (2) the
`ruling that sound recordings could not be played to prove
`access; (3) various jury instructions; (4) the imposition of
`overall time limits for the trial; (5) the fact that the full
`version of Taurus was played in response to the jury’s
`request; and (6) the decision not to exclude or sanction
`Dr. Ferrara because of a claimed conflict of interest.
`
`Warner/Chappell filed separate motions for attorneys’
`fees and costs, which
`the district court denied.
`Warner/Chappell timely cross-appealed and the two appeals
`were consolidated.
`
`A panel of our court vacated the amended judgment in
`part and remanded for a new trial. We granted rehearing en
`banc.5 Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir.
`2018), reh’g en banc granted, 925 F.3d 999 (9th Cir. 2019).
`
`ANALYSIS
`
`I. THE 1909 COPYRIGHT ACT
`
`The world of copyright protection for music changed
`dramatically during the twentieth century and those changes
`dictate our analysis here. The baseline issue we address is
`the scope of Wolfe’s copyright
`in
`the unpublished
`composition Taurus, which was registered in 1967, between
`the passage of the Copyright Act of 1909 (“1909 Act”) and
`
`5 In connection with en banc proceedings, we received thoughtful
`amicus briefs from a broad array of interested groups, including
`intellectual property and musicology scholars; songwriters, composers,
`musicians, and producers; recording companies and music publishers;
`rights holders; and the U.S. government. We thank amici for their
`participation.
`
`
`
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`SKIDMORE V. LED ZEPPELIN
`
`16
`
`the sweeping copyright reform adopted in the Copyright Act
`of 1976 (“1976 Act”). We conclude that the 1909 Act
`controls and that the deposit copy defines the scope of the
`Taurus copyright.
`
` THE HISTORY OF COPYRIGHT PROTECTION FOR
`MUSICAL
`COMPOSITIONS
`SOUND
`AND
`RECORDINGS
`
`today, musical
`seems unthinkable
`it
`Although
`compositions were not explicitly subject to copyright in the
`United States until 1831, when Congress added “musical
`composition” to the list of statutorily protected works.
`Copyright Act of 1831, ch. 16, § 1, 4 Stat. 436, 436 (repealed
`1909). Thus, the “musical composition,” which was
`understood to be a printed form of the music, joined the
`statutory protection afforded to dramatic compositions,
`maps, charts, engraving, photographs and other works.
`
`Between 1831 and the early 1900s, a number of
`machines were
`invented
`that allowed mechanical
`reproduction of a musical composition. Goldstein v.
`California, 412 U.S. 546, 564 (1973). With the advent of
`player pianos at the turn of the century, the question arose
`whether copyright protection extended to the infringement
`of musical compositions by perforated piano rolls.6 The
`Supreme Court held that the copyright statute barred the
`unauthorized copying of a musical composition “in
`intelligible notation,” but that it would be “strained and
`artificial” to consider musical sounds coming from an
`
`
`6 A piano roll is “a roll, usually of paper, on which music is
`preserved in the form of perforations; it is recorded and played back
`mechanically on a player piano or pianola.” Piano(la) roll, The New
`Grove Dictionary of Jazz (Barry Kernfeld ed., 1994).
`
`
`
`Case: 16-56057, 03/09/2020, ID: 11621937, DktEntry: 181-1, Page 17 of 73
`
`17
`
`SKIDMORE V. LED ZEPPELIN
`
`
`
`instrument to be a copy. White-Smith Music Publ’g Co. v.
`Apollo Co., 209 U.S. 1, 17–18 (1908). Justice Holmes
`commented in his concurrence that “[o]n principle anything
`that mechanically reproduces that collocation of sounds
`ought to be held a copy, or, if the statute is too narrow, ought
`to be made so by a further act.” Id. at 20.
`
`Congress stepped in to remedy the situation, perhaps
`heeding Justice Holmes’s call. The Copyright Act of 1909—
`landmark legislation that significantly revised copyright
`law—categorized
`mechanically-reproduced
`musical
`compositions, such as those played on player pianos and
`phonograph players, as “copies” of the original composition.
`1909 Act, ch. 320, § 1(e), 35 Stat. 1075, 1075 (1909)
`(repealed 1976).
`
`The statute provided copyright protection against “any
`arrangement or setting of [the musical composition] or of the
`melody of it in any system of notation or any form of record
`in which the thought of an author may be recorded and from
`which it may be read or reproduced.” Id. Skidmore seizes
`on this language to argue that the new legislation extended
`copyright protection beyond sheet music. The text does not
`support this reading. Although the 1909 Act extended
`copyright protection against infringement beyond the mere
`reproduction of the sheet music, Congress did not provide
`that copyrighted works could be anything other than sheet
`music or, for an unpublished work, the musical composition
`transcribed in the deposit copy. 1909 Act §§ 5, 11.
`
`The Court reinforced this principle in Goldstein v.
`California when it noted that the amendments insured that
`composers of original musical works received adequate
`protection, and that “records and piano rolls were to be
`considered as ‘copies’ of the original composition . . . , and
`could not be manufactured” without a specified royalty
`
`
`
`Case: 16-56057, 03/09/2020, ID: 11621937, DktEntry: 181-1, Page 18 of 73
`
`SKIDMORE V. LED ZEPPELIN
`
`18
`
`payment. 412 U.S. at 565–66. The Court emphasized that
`“composers were to have no control over the recordings
`themselves,” which Congress considered “a component part
`of a machine, capable of reproducing an original
`composition,” or
`“renderings of original
`artistic
`performance.” Id. at 566.
`
`Requiring more formalities than the current copyright
`act, the procedures for obtaining copyright protection under
`the 1909 Act were very specific. Registration for an
`unpublished musical work could be obtained “by the deposit,
`with claim of copyright, of one complete copy of such work”
`with the Copyright Office. 1909 Act § 11. In contrast,
`protection for a published work could be secured by affixing
`a copyright notice “to each copy thereof published or offered
`for sale in the United States by authority of the copyright
`proprietor.” Id. § 9. Either way, distributing sound
`recordings did not constitute publication under the 1909 Act,
`so musical compositions were only published if the sheet
`music also was published. See ABKCO Music, Inc. v.
`LaVere, 217 F.3d 684, 688 (9th Cir. 2000). Significantly,
`the Copyright Office did not even accept sound recordings
`as deposit copies. Indeed, “in order to claim copyright in a
`musical work under the 1909 Act, the work had to be
`reduced to sheet music or other manuscript form.” 1 M.
`Nimmer & D. Nimmer, Nimmer on Copyright (“Nimmer”)
`§ 2.05[A] (2017).
`
`Sound recordings did not become subject to copyright
`protection until 1972, and then only for the sound recordings
`fixed on or after February 15, 1972. 17 U.S.C. § 301(c). The
`amendment did nothing to change the requirements of the
`1909 Act or the status of the Taurus copyright.
`
`The copyright requirements were changed dramatically
`by the 1976 Copyright Act, which provided that public
`
`
`
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`
`19
`
`SKIDMORE V. LED ZEPPELIN
`
`
`
`distribution of a sound recording qualified as publication of
`a musical composition. Id. § 101. In other words,
`composers could submit a recording rather than sheet music
`as the deposit copy for a musical composition. The catch,
`for this case, is that publication before the 1978 effective
`date is not covered by the new statute.
`
` THE TAURUS DEPOSIT COPY
`
`The 1967 deposit copy of Taurus is a single page of sheet
`music. Skidmore suggests that the copyright extends beyond
`the sheet music; that is, the deposit copy is somehow
`archival in nature and more of a reference point than a
`definitive filing. This approach ignores the text of the statute
`and the purpose of the deposit.
`
`We have outlined copyright protection under the 1909
`Act as follows: “[A]n unpublished work was protected by
`state common law copyright from the moment of its creation
`until it was either published or until it received protection
`under the federal copyright scheme.” ABKCO, 217 F.3d at
`688 (quoting LaCienega Music Co. v. ZZ Top, 53 F.3d 950,
`952 (9th Cir. 1995)). The referenced federal copyright
`protection for unpublished works is found in the text of the
`statute: “copyright may also be had of the works of an author
`of which copies are not reproduced for sale, by the deposit,
`with claim of copyright, of one complete copy of such work
`if it be a . . . musical composition . . . .” 1909 Act § 11.
`
`The text is clear—for unpublished works, the author
`must deposit one complete copy of such work. The purpose
`of the deposit is to make a record of the claimed copyright,
`provide notice to third parties, and prevent confusion about
`the scope of the copyright. See Data Gen. Corp. v.
`Grumman Sys. Support Corp., 36 F.3d 1147, 1161–62 (1st
`Cir. 1994) (the deposit requirement provides the “Copyright
`
`
`
`Case: 16-56057, 03/09/2020, ID: 11621937, DktEntry: 181-1, Page 20 of 73
`
`SKIDMORE V. LED ZEPPELIN
`
`20
`
`Office with sufficient material to identify the work in which
`the registrant claims a copyright . . . [and] prevent[s]
`confusion about which work the author is attempting to
`register”), abrogated on other grounds by Reed Elsevier,
`Inc. v. Muchnick, 559 U.S. 154 (2010); Report of the
`Register of Copyrights on the General Revision of the U.S.
`Copyright Law 71 (1961) (one of the purposes of the deposit
`is “to identify the work” being registered).
`
`Even before the 1909 Act, the Supreme Court stated that
`one objective of the deposit was to permit inspection by
`other authors “to ascertain precisely what was the subject of
`copyright.” Merrell v. Tice, 104 U.S. 557, 561 (1881). At
`the time that Taurus was registered, the Copyright Office’s
`practice regarding applications to register unpublished
`musical compositions was to consider “writ[ing] to the
`applicant, pointing out that protection extends only to the
`material actually deposited, and suggesting that in his own
`interest he develop his manuscript to supply the missing
`element.” Compendium of Copyright Office Practices
`(“Copyright Office Compendium”) § 2.6.1.II.a (1st ed. 1967)
`(emphasis added). The inescapable conclusion is that the
`scope of the copyright is limited by the deposit copy.
`
`The practical treatment of deposit copies underscores
`their importance. The 1909 Act prohibits destruction of
`copies of unpublished works without notice to the copyright
`owner. 1909 Act §§ 59–60. Buttressing this protection, the
`Register of Copyright’s policy is to retain access to the
`de
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