In Skidmore v. Led Zeppelin, a federal jury found that “Stairway to Heaven” did not infringe the copyright in Spirit’s 1968 instrumental “Taurus,” and the Ninth Circuit sitting en banc reinstated that verdict in March 2020 after a three-judge panel had briefly overturned it. The Supreme Court declined review that October, leaving the en banc ruling in place along with its most consequential holding: the abolition of the inverse ratio rule, a doctrine that had long let music copyright plaintiffs in the Ninth Circuit trade strong evidence of access for weaker evidence of similarity.
Who Sued Whom, and Over What
Michael Skidmore, trustee of the Randy Craig Wolfe Trust, filed the lawsuit in May 2014. Randy Wolfe, who performed as Randy California, was the guitarist for Spirit and composed “Taurus” in 1966 or 1967. Spirit released the instrumental on its debut album in 1968. Skidmore alleged that the famous opening of “Stairway to Heaven,” written by Jimmy Page and Robert Plant in 1971, was lifted from a passage in “Taurus.”1United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (En Banc Opinion)
Access was a real question in the case. The two bands played some of the same venues in the late 1960s, including a 1968 Denver concert where Led Zeppelin was added to a bill under Spirit. Led Zeppelin had covered another Spirit song, “Fresh Garbage,” in early live sets. Trial testimony showed that Jimmy Page owned five Spirit albums in a personal collection of more than 10,000 records, though he said he had only recently discovered them. The jury ultimately found that Led Zeppelin did have access to “Taurus.” That finding alone, however, was not enough to win.2United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (Panel Opinion)
Why the 1909 Copyright Act Decided So Much
Because “Taurus” was composed and registered before the modern Copyright Act of 1976 took effect, the older Copyright Act of 1909 governed its protection. Under the 1909 Act, copyright in a musical composition that was not reproduced for sale attached through the deposit of “one complete copy” of the work with the Copyright Office.3U.S. Copyright Office. Copyright Act of 1909 – Section 11 For “Taurus,” that deposit was a single page of sheet music submitted by Wolfe’s publisher.
The consequence was significant. The 1909 Act protected the written notation, not what the musicians played in the studio. Any embellishments, improvisations, or production choices on Spirit’s recording of “Taurus” sat outside the scope of copyright. The Ninth Circuit confirmed this, holding that “the scope of copyright protection for an unpublished musical work under the Copyright Act of 1909 is defined by the deposit copy.”2United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (Panel Opinion)
Under current law, the distinction between a musical composition and its sound recording still matters, though the framework is more generous. A musical work covers the underlying composition and any lyrics; a sound recording covers the specific captured performance. Both can be registered separately, and each carries its own rights. The public performance right for a sound recording, for example, is limited to digital audio transmissions, while the composition’s performance right is broader.4U.S. Copyright Office. Musical Works, Sound Recordings and Copyright Had “Taurus” been created after 1978, the analysis might have looked different.
What the Jury Was Allowed to Compare
Because protection reached only the deposit copy, the trial court barred the jury from listening to Spirit’s commercial recording of “Taurus.” Expert musicologists instead performed the passages from the written sheet music, and the jury compared those performances against the composition of “Stairway to Heaven.” The sheet music was far simpler than the recorded performance, which stripped away many of the elements casual listeners find most similar between the two songs.2United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (Panel Opinion)
The Ninth Circuit uses a two-part substantial similarity framework. The extrinsic test is an objective comparison in which courts break each work into its constituent elements and compare only those that qualify for copyright protection, typically melody, harmony, and rhythm in music cases. The intrinsic test then asks whether an ordinary reasonable listener would perceive the works as substantially similar overall. The jury in Skidmore never reached the intrinsic step, because it concluded the works failed the extrinsic comparison.
The Common Musical Elements Problem
The central issue at trial was whether the shared material involved anything copyright actually protects. The judge instructed the jury that copyright “does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.”2United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (Panel Opinion) The passage at the heart of the dispute was a descending chromatic bass line over minor chords. Led Zeppelin’s defense argued this was a commonplace device that no one could own.
The defense had deep historical evidence to draw on. The pattern appears in 17th-century Venetian opera, in Purcell’s 1689 Dido and Aeneas, and in jazz where musicians call it a descending chromatic line cliché. By the 1960s it turned up in standards like “My Funny Valentine” and was documented in music theory textbooks. Skidmore’s experts argued that both songs stopped the descending line on a particular note rather than completing the traditional pattern, making the similarity distinctive. The defense countered that stopping on that note was itself common in popular music before either song was written.
This reflects a copyright principle sometimes called scènes à faire: elements so standard within a genre that they are essentially required cannot be monopolized by any single author. Stock chord progressions, common rhythmic patterns, and widely used melodic devices sit outside copyright. The doctrine keeps copyright from swallowing the building blocks all composers need.
Verdict, Reversal, and Reinstatement
After a five-day trial, the jury returned a verdict for Led Zeppelin. It found that Skidmore owned the copyright to “Taurus” and that Led Zeppelin had access to the song, but that the two compositions were not substantially similar in their protected elements.1United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (En Banc Opinion)
Skidmore appealed. In September 2018, a three-judge Ninth Circuit panel reversed and ordered a new trial, faulting several jury instructions. Among other things, the panel said the instruction listing chromatic scales and arpeggios as unprotectable was misleading given Ninth Circuit precedent that even a limited set of notes can qualify for protection if arranged originally, and that the jury should have been told a composer’s original selection and arrangement of common elements can itself be protectable. The panel also said the trial court should have let the jury hear Spirit’s recording for the limited purpose of evaluating access.2United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (Panel Opinion)
Led Zeppelin petitioned for rehearing, and the full Ninth Circuit agreed to take the case en banc. In March 2020, the en banc court reversed the panel and reinstated the original jury verdict. Judge McKeown wrote the majority opinion, joined in full by five other judges, with three more joining most of it and diverging on parts of the reasoning. Judge Ikuta, joined by Judge Bea, concurred in part and dissented in part.5Justia Case Law. Skidmore v. Zeppelin The en banc court found the jury instructions imperfect but not reversible error, and used the case to clean up several areas of copyright doctrine that had grown inconsistent across Ninth Circuit decisions. In October 2020, the Supreme Court declined review.
The End of the Inverse Ratio Rule
The most lasting effect of Skidmore was doctrinal. For decades, the Ninth Circuit had applied the “inverse ratio rule,” which held that the stronger a plaintiff’s evidence of access, the less proof of substantial similarity was required. If you could show a defendant definitely heard your song, you could win with weaker similarity evidence than would otherwise be needed.
The en banc court scrapped the rule. The opinion said it “defies logic, and creates uncertainty for the courts and the parties,” and concluded that “access does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.”1United States Court of Appeals for the Ninth Circuit. Skidmore v. Led Zeppelin (En Banc Opinion) The Second, Fifth, Seventh, and Eleventh Circuits had already rejected the rule, so the Ninth Circuit’s decision brought it into line with most other federal courts.
The practical effect: a music copyright plaintiff in the Ninth Circuit now has to prove access and substantial similarity independently. Proving one no longer lowers the bar for the other. For well-known artists whose music is widely available, this matters. Before Skidmore, a song’s fame nearly guaranteed access, which in turn reduced how much similarity a plaintiff needed to show. That shortcut is gone.
How the Result Compares to Blurred Lines
Skidmore is often read alongside Williams v. Gaye, the “Blurred Lines” case from the same circuit, in which the Ninth Circuit upheld a jury verdict finding that Robin Thicke and Pharrell Williams infringed Marvin Gaye’s copyright in “Got to Give It Up.” The two cases reached opposite results.
In Williams v. Gaye, the court found substantial similarity based on elements like signature phrases, hooks, bass lines, keyboard chords, and vocal melodies. The dissenting judge argued the majority was effectively allowing copyright over a musical style or “groove.” In Skidmore, the en banc court took a narrower view and emphasized that common musical elements like descending chromatic scales cannot be owned. Where the Blurred Lines verdict alarmed many songwriters by suggesting that capturing the feel of an older song could constitute infringement, Skidmore reinforced that copyright protects specific original expression, not general musical vocabulary. Songwriters and producers in the Ninth Circuit operate under both precedents, and the outcome of any given case depends heavily on whether a court views shared elements as protectable expression or common building blocks.
What Winning Cost
Even after prevailing, Led Zeppelin’s legal costs did not disappear. Defendant Warner/Chappell Music sought $613,471 in attorney’s fees and $179,699 in costs from Skidmore. The motion was denied.6TheTMCA.com. Order re Defendants Motion for Attorneys Fees and Costs Federal copyright law lets courts award reasonable attorney’s fees to the prevailing party, but the award is discretionary, not automatic.7Office of the Law Revision Counsel. 17 U.S. Code 505 – Remedies for Infringement: Costs and Attorneys Fees Courts weigh factors including whether the losing party’s position was frivolous, their motivation, and whether an award would advance copyright’s broader purposes. The denial here suggests the court did not view Skidmore’s claim as frivolous, even though it failed. Anyone considering music copyright litigation should read the case with that in mind: costs on each side can run into the hundreds of thousands of dollars, with no guarantee of recovery regardless of outcome.