Friday, April 15, 2016

Is Led Zeppelin Threatening Creativity?

Randy California (top left) and Spirit
The concept of ownership in America has officially become untenable. The case of Michael Skidmore v. Led Zeppelin, alleging the famous British blues-rock band plagiarized the iconic opening measures of “Stairway to Heaven,” demonstrates how narrowly restrictive intellectual property law has become. It transforms one of rock music’s most famous compositions into a ripoff of a frankly boring and forgettable deep-album cut. But it does much worse.

Skidmore, representing the estate of prog-rock semi-luminary Randy California, purports that Jimmy Page, who almost certainly knew California’s work—Zeppelin opened for California’s band Spirit on a 1968 US tour—recycled Spirit’s instrumental “Taurus” into the opening bars of “Stairway.” Skidmore calls “Taurus” an “ethereal yet classical guitar composition.” Most music lovers who’ve heard the actual track would probably call it “boring.”

The case, filed nearly two years ago but approaching trial now, has merit. Skidmore makes a persuasive case that Page knew Spirit’s music. Anyone hearing “Taurus” without being warned might believe, for eight or ten seconds, that they were hearing “Stairway to Heaven.” Skidmore’s thirty-five-page complaint certainly has a prima facie case. The question becomes, is that very brief similarity legally actionable? And if so, does it have wider implications?

The similarities, though brief, are undeniable. Music critic Alex Ross, who understands these things better than me, argues that the similarities are superficial. But to the untrained ear, the similarities are audible. The difference is that Spirit circles that one motif for two-and-a-half minutes, and simply peters out. Zeppelin, by contrast, uses that brief motif as foundation, launches from there, and never stops building. Zeppelin clearly composed the better song.

Jimmy Page (with guitar) and Robert Plant of Led Zeppelin
Intellectual property in music has become hot property lately. Classic twang-rocker Tom Petty now partly owns Sam Smith’s snoozy Top-40 hit “Stay With Me,” because it supposedly resembles Petty’s “Won’t Back Down.” Millions of dollars ride on the case of whether Robin Thicke’s track “Blurred Lines” ripped off Marvin Gaye, or merely composed an homage. In both cases, similarities to the original tracks are less distinct than the Zeppelin case.

Both cases seem really weird to interested amateurs. “Stay With Me” has a similar backbeat to “Won’t Back Down,” but the two songs resemble one another less than Red Hot Chili Peppers’ “Dani California” resembles Petty’s “Mary Jane’s Last Dance”—a comparison Petty has reputedly laughed off. The Peppers even unabashedly pinched Hendrix’s “Purple Haze” chord progression for “Dani Califonia’s” final instrumental breakdown. But the Peppers aren’t in court.

And similar backbeat isn’t enough to base a plagiarism case. That isn’t me saying it; John Fogerty, in 1988, took his guitar into the witness box to prove similar backbeats don’t mean he plagiarized his composition “Run Through the Jungle,” which he doesn’t own, in writing “The Old Man Down the Road,” which he does. Courts sided with Fogerty. The Fogerty precedent should apply to Sam Smith, and musicians generally.

Basically, under current US copyright law and the Berne Convention, the similarity between “Taurus” and “Stairway” is too brief for sustainable legal action. But even worse, this case, even more than the “Stay With Me” case, has chilling implications for creativity. If even small, transitory similarities constitute theft, if pinching three bars from another composer equals plagiarism, most artists, not just musicians, are culpable for at least occasional theft.

John Fogerty, who was accused
of plagiarizing himself
Bob Dylan’s classic album Highway 61 Revisited includes long passages deliberately reminiscent of Allen Ginsberg. Dylan couldn’t claim ignorance; he’d appeared onscreen with the poet in his “Subterranean Homesick Blues” video. Andy Warhol regularly reproduced, not just mimicked, classic artists and graphic designers, some still living then. My first published poem, “I Do Not Love You,” was written in imitation of June Jordan—not advertised as such, but present nonetheless.

Clearly plagiarism does exist. Michael Bolton lightly tinkered with the Isley Brothers track “Love Is a Wonderful Thing,” slapped his own name on it, and made millions before getting caught. But even that brings issues: the Bolton case began within one year of the single’s release. Zeppelin is defending itself forty-five years after “Stairway’s” release, and nearly twenty years after Randy California’s death. The long delay seems specious at best.

If this case succeeds, it will have chilling effects on artistic creativity. If one composer can claim absolute ownership over three measures of music, ideas cannot flow. Artists depend on exchange to create new works; Randy California’s composition borrows liberally from Palestrina and Bach. Copyright law was written to protect intact or significantly-intact works, not fragments. Cases like this could literally kill art.

See Also: Copy This Copyright Rant

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