## Facts

- Randy Wolfe (a/k/a Randy California) composed the instrumental *Taurus* in 1966–1967 and registered it in 1967 as an unpublished musical work under the 1909 Copyright Act using a one-page sheet-music deposit copy.
- Spirit later released a commercial sound recording of *Taurus* on a 1968 album.
- Led Zeppelin wrote and released *Stairway to Heaven* in 1971.
- Michael Skidmore, as trustee for Wolfe’s trust, alleged that the arpeggiated opening of *Stairway to Heaven* copied the first eight measures of *Taurus*, including claimed similarities in melody, chord progression, structure, and overall sound.
- Skidmore relied on overlapping performance histories and Led Zeppelin’s performance of other Spirit material as circumstantial evidence of access.
- The district court limited the protectable scope of *Taurus* to the 1967 deposit copy and excluded *Taurus* sound recordings from the substantial-similarity analysis (while permitting limited use related to access).
- A jury found valid ownership and access but returned a defense verdict on lack of substantial similarity; judgment entered for defendants, and the district court denied post-trial relief and denied a prevailing defendant’s request for attorneys’ fees.

## Issues

1. Whether the 1909 Act governed the infringement analysis and whether the scope of protection for *Taurus* was limited to the 1967 deposit copy.
2. Whether sound recordings of *Taurus* could be used to prove substantial similarity in protected expression.
3. How to separate “copying” from “unlawful appropriation” within the infringement analysis.
4. Whether the Ninth Circuit should retain the inverse ratio rule (greater access reduces the similarity showing).
5. Whether the jury instructions and key trial-management/evidentiary rulings required a new trial.

## Decision

- The en banc Ninth Circuit affirmed the judgment for defendants on the jury verdict.
- The court held the 1909 Act applied, and the protectable scope of an unpublished work registered under that Act is defined by the deposit copy.
- The court held it was not error to exclude *Taurus* sound recordings from the substantial-similarity inquiry because sound recordings were not protected under the 1909 Act and could not expand the protectable content beyond the deposit copy.
- The court overruled the inverse ratio rule.
- The court found no reversible error in the challenged jury instructions or the district court’s trial-management decisions and affirmed the denial of attorneys’ fees.

## Legal Principles

- For an unpublished musical composition registered under the 1909 Act, the copyright’s scope is measured by the deposit copy submitted to the Copyright Office.
- Sound recordings cannot be used to enlarge the protectable content of a 1909 Act deposit-copy composition for purposes of substantial similarity (though they may be relevant to access in appropriate circumstances).
- Copyright infringement requires proof of (1) copying and (2) unlawful appropriation; unlawful appropriation turns on substantial similarity in protectable expression, not on generic musical devices.
- Common musical building blocks are not protectable standing alone; an original selection and arrangement may be protectable only where the selection and arrangement reflect sufficient original expression.
- Access does not reduce the plaintiff’s burden to prove substantial similarity in protectable expression; the inverse ratio rule is rejected.

## Conclusion

The en banc court left intact the jury’s finding of no substantial similarity, limited *Taurus*’s protected scope to its 1909 Act deposit copy, and eliminated the inverse ratio rule, requiring independent proof that the defendant appropriated protectable expression regardless of evidence of access.


Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc)