The rock band Led Zeppelin wrote its famous “Stairway to Heaven” in early 1970 and released it to the public in 1971. Over four decades later, the band members were sued for copyright infringement (Skidmore v. Led Zeppelin, 2014). Led Zeppelin had opened for another band, Spirit, in 1968.

 

The suit alleged that Led Zeppelin band members Jimmy Page and Robert Plant stole the song’s iconic opening guitar riff from a 1968 song by Spirit called “Taurus.”


Copyright infringement is established when the plaintiff shows

“(1) ownership of a valid copyright,
(2) copying of constituent elements of the work that are original.”

Copying can be demonstrated by showing that two works “are substantially similar in their protected elements” and “that the infringing party had access to the copyrighted work” (Rice v. Fox Broad. Co., 2003).

 

Witness testimony can be critically important to show whether the band had access to the copyrighted work. Likewise, such testimony is relevant to a critical defense in copyright infringement claims: that the work in question is the product of “independent creation.”

 

A witness can speak to the song’s origins, the individuals involved, and other business dealings.

How can a plaintiff bring suit after decades of inaction?

 

Suits for copyright infringement are subject to a three-year statute of limitations.

 

However, this three-year limitations period starts over with “each act of infringement.”

In short,

 

“[i]f a defendant reproduces or sells an infringing work on a continuing basis, a plaintiff can sue every 3 years until the copyright term expires—which may be up to 70 years after the author’s death”

(Petrella v. Metro-Goldwyn-Mayer, Inc., 2014, Breyer, J., dissenting).

Another legal doctrine—the doctrine of “laches”—might limit the time within which a party can bring suit. The laches doctrine aims to prevent unreasonable delays that will adversely affect the opponent, such as in cases with “lost, stale, or degraded evidence, or witnesses whose memories have faded, or who have died” (Evergreen Safety Council v. RSA Network, Inc., 2012).

 

But the U.S. Supreme Court has greatly curtailed the use of laches in the copyright litigation context, reserving laches for “extraordinary circumstances” (Petrella v. Metro-Goldwyn-Mayer, Inc., 2014).

 

Such circumstances currently remain ill-defined.

The Led Zeppelin case demonstrates vulnerabilities that the statute of limitations and the laches doctrine leave open.

When the suit was brought, the band members were all in their 60s or 70s. Undoubtedly, time had clouded their memories of the events surrounding the creation of “Stairway to Heaven.”

 

But, in addition, the specific ways in which memory fades with time can make it difficult to answer critical questions related to the creation of a musical work: Who first came up with this riff? When and where was the riff created?

 

When or in what order did we first hear the competing song? When did we write that piece—before or after we first heard the other band?

 

Pinpointing the origins of the guitar riff in “Stairway to Heaven” requires the ability to disentangle complex associations and correctly locate specific details in time.

 

The fact that the memories most relevant to legal copyright questions are the types of memories most affected by natural aging processes underscores the importance of considering age as a factor when determining how to address copyright claims brought decades after the creation of the relevant works.