This summer, an American jury found that “” [hereafter Stairway] rockers Led Zeppelin did not infringe the song “” [hereafter Taurus], performed by the band Spirit. The plaintiff, Randy Wolfe—or rather, a trustee for the trust which owns the late Wolfe’s copyright—was Spirit’s songwriter, guitarist and vocalist, and the copyright owner of the musical work. Wolfe that Stairway songwriters Robert Plant and Jimmy Page attended a Spirit concert, heard his 1967 composition Taurus, then stole the descending chord progression, arpeggio sequence, and harpsichord melody, using it as their 1971 classic ballad’s introduction.^[1]

—conducted and concluded by jury like the “” — . And, in the wake of the ruling, it was difficult to forecast this case’s outcome. On June 23, however, the jury needed less than a day’s deliberation to deliver a reasonable judgment: scant evidence of copying and little substantial similarity between the songs meant no infringement.

It was reported that Wolfe’s attorney he “lost on a ‘technicality’” and plans to appeal. The technicality on which he lost, , was the substantial similarity comparison. It is a woeful misunderstanding of the significance of substantiality in non-literal copyright infringement to consider it a “mere technicality”.

Verse: Canadian copyright infringement

Applying US or Canadian law should lead to the same result in this case. In Canada, of the Copyright Act [the Act] grants a copyright owner the sole right to reproduce the work or a substantial part of that work. And, section 27(1) of the Act calls it an infringement when anyone, without the owner’s consent, does what the owner has the right to do with that work. When exact copies are not involved, infringement claims typically refer to substantial part reproduction. So, substantial similarity comparisons arise when two works which are dissimilar—like Stairway and Taurus—and courts must compare them to see if the impugned work reproduced a substantial part of the plaintiff’s work.

Therefore, to succeed in this type of infringement claim, the plaintiff (Wolfe’s estate) must prove two elements on a balance of probabilities:

1. the work was copied; and
2. sufficient objective similarity (the copied portion represents a substantial part of the plaintiff’s work).^[2]

Whether a substantial part was taken is crucial to a finding of infringement. If it was not, the Act is not engaged,^[3] and whether the defendant (Led Zeppelin) copied the plaintiff is irrelevant.

can and does result in legitimate new copyrightable works. Also, because ideas are not copyrightable, using tools available to all authors cannot alone make infringement: creators can copy a colour palette from a painting; a series of rhyming words from a poem; a chord progression from a song.^[4] Taking a particle of a work does not infringe.^[5] So, while some cases unfortunately settle on this point, chord progression borrowing in pop music should not, typically, lead to infringement findings. If they did in other musical genres, many blues and jazz compositions would cease to be protectable, as they are genres built on borrowed chord progressions. Rock music, too, is not immune to , but unless the borrowed progression represents a substantial expression of the first work, it would not be infringement. might have benefited from this point before settling with Tom Petty on this count, since the borrowed element in “” is merely part of Petty’s verse, not the chorus (as it is used in Smith’s “”).

So, even if Led Zeppelin were proved to have directly copied the work—a claim which was “strenuously disputed”^[6] though likely conceded when Page and Plant admitted having access to Spirit’s music—Stairway’s use of similar (not identical) arpeggios and one phrase’s chord progression would still have been insufficiently similar to any protected expression in Taurus. This point bears emphasizing because lay listeners are sometimes of infringement upon hearing similar musical phrases, even though most innocent and deliberate is allowed.

A problem that arises in courts is that the line between idea and expression is rarely clear and, particularly for non-literal works, rather hard to quantify. So, courts must embark on a determination of fact to compare and establish if a substantial part of the plaintiff’s work was reproduced in the impugned work. A deviation in the Canadian approach to a substantial similarity comparison presents a unique argument in this case which lacks in discussion of the US decision (though would still lead to non-infringement finding).

Interlude: �䲹�Բ��岹’s holistic test presents a stronger case for non-infringement

The Supreme Court of Canada (SCC) recently established a new test for comparing two works in a substantial similarity analysis.^[7] The two works are compared cumulatively to see if the defendant unduly interfered with the plaintiff’s rights.^[8] The holistic analysis is new, but it crystallized prior Canadian jurisprudence and does not represent a major departure from prior Canadian copyright cases, save for in one key area: the viewpoint from which the two works should be compared.^[9]

Robinson c. Films Cinar inc [Cinar] shifted the comparative perspective from the traditional “layperson in the intended audience” to that of a person with a more knowledgeable viewpoint,^[10] depending on the nature of the work.^[11] The Cinar decision stated: [1] it is useful to compare the two works from the layperson’s view; but [2] the two works should be viewed from the person who can assess all the patent and latent aspects of a work because their senses and knowledge fully allow it.

This perspective deviates from the American one. There, after an extrinsic stage which asks first which elements are objectively similar,^[12] the intrinsic stage just asks whether a typical lay observer would recognize the accused work as having been copied from the original.^[13] Some courts do refer to the “intended audience” of the work,^[14] a consideration infused into the Canadian comparison, but not all.

Chorus: Comparing the two works from the correct perspective should find no substantial similarity

A key argument to temper any similarity in this case found from the lay perspective is found in �侱�Բ���’s reasons beginning at : “Stairway”, the impugned work, is the more renowned work. Since this suit is based on 45-year-old compositions, any layperson in Spirit’s intended audience would recognize that arpeggio sequence as the introduction to Zeppelin’s rock classic, and more importantly, they would imbue it with significance (as the plaintiff’s expert did, though incorrectly to Wolfe’s composition).^[15] It should be conceded that the impugned passage’s recognizability is not a result of its own inherent substantiality, nor of Spirit’s particular expression of it.

So, the question for the trier of fact, who must take the viewpoint of a person who can assess all patent and latent aspects, is whether Taurus’ A-minor descending sequence as described (the only protectable similar element found by the court in the extrinsic test)^[16] would have been recognizable without thirty years of radio airplay and popular culture references. The trier must pretend they live in a world where Stairway never existed, and ask then if the borrowed element could comprise a substantial part of Taurus.

Bridge: the works being compared are musical compositions, not sound recordings

Note, however, that what the court compared was not two sound recordings (since the plaintiff does not own that copyright).^[17] It had to compare Stairway to the musical composition, Taurus, as written (in musical notation). And while it is permissible for the court to consider Stairway’s sound recording (in Cinar, the court compared a realized animated television show to incomplete, unpublished materials), the comparison remained limited to Taurus’ transcription, and not its recording, which Wolfe has no right to protect.^[18]

Yet, there is some Canadian case law which would militate against Zeppelin, if a similar case were to occur here. A 1991 decision found infringement on the basis that the first eight measures of the two songs had a “striking resemblance” emphasizing the qualitative importance of the first measures of the refrain “which are the ‘hook’ that the ear retains for the purpose of identifying a piece”.^[19] This analysis favours Spirit, but only if one presumes that the opening progression of Taurus is the “hook” of that song. Again, hindsight (or hind-hearing) saturates the allegedly copied��sequence with familiarity, but without ���ٲ������ɲ���’s fame, would it be so for Taurus?

Four arpeggios alone, non-identically copied, is a weak basis for an infringement claim. Inclusion of a matching melody line, similar rhythmic accompaniment, or other musical elements and Stairway could create a threshold case of substantial similarity. Wolfe's expert attested that �ղ��ܰ��ܲ�’ harpsichord melody resembled Plant’s vocal line in Stairway, albeit the court rejected its inclusion without giving reasons for doing so.^[20]

One might surmise that comparing ���ٲ������ɲ���’s prominent vocal melody—a complex performance of lyrical content infused with a performer’s distinct��vocal timbre—to a written lifeless harpsichord line (albeit perhaps with some direction for dynamics and articulation) was beyond the scope of the plaintiff’s protection.^[21] Because the protected work is a musical composition and not a sound recording, a trier of fact should and did have difficulty establishing a lone dissimilar arpeggio sequence as comprising a substantial part of a composition. That difficulty is amplified when the impugned work is not to be compared to performance and production elements in the protected work.

Outro

Perhaps a Canadian court would find another legal peg in Cinar to rest a non-infringement finding on: in paragraph [40] the unanimous court wrote that “If the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement.” Comparing Taurus—an airy two-and-a-half-minute baroque-style instrumental piece—to Stairway—an eight-minute hard rock ballad recording featuring several iconic guitar solos, lyrics, vocal melodies, drum riffs, and other protectable expression galore—should demonstrate that the latter is a new and original work. It should especially do so because, in 2016, it would be unfair to reward Taurus with a substantial part finding as a result of ���ٲ������ɲ���’s fame, and it would build a mechanism for less successful litigants to sue more successful artists for original works which legitimately employ common chords, melodies and rhythms: tools otherwise free for any composer to make music, but slowly locked away in spite of the Act’s purpose to encourage the creation and dissemination of new works.

Jordan Fine is Senior Editor of the IPilogue and Intellectual Property Journal and a JD candidate at Osgoode Hall Law School

^[1] Skidmore v. Led Zeppelin, No. CV153462RGKAGRX, 2016 WL 1442461, (C.D. Cal. Apr. 8, 2016) [Skidmore].

^[2] , RSC 1985, c C-42, ss 3(1), 14.1, 28.2 [C Act]; John McKeown, Fox on Canadian Law of Copyright and Industrial Designs, 4th ed, vol 1 (Toronto: Carswell, 2012) (online version updated in 2014) at 21:2 [Fox on Copyright]; Francis Day & Hunter v. Bron, [1963] 2 All ER 16 at 27 (CA) [Francis Day].

^[3]��C Act, Ibid, s 3(1).

^[4] As David Vaver wrote in Copyright Law (Toronto: Irwin Law, 2000): “[a]nyone was (and is) free to paint funny-looking people holding guitars: what they cannot do is imitate Picasso’s expression of these subjects.”

^[5] , 2013 SCC 73, 2013 CarswellQue 12345 [Cinar] at para [143].

^[6] Skidmore v. Led Zeppelin, No. 2:15-cv-03462 RGK (AGRx), 2016 WL 1470076 (C.D.Cal. Apr. 4, 2016) (Trial Motion, Memorandum and Affidavit).

^[7]Cinar, supra note 5 at [25].

^[8] Ibid, at paras [35] & [143].

^[9] Ibid, at paras [50]-[51].

^[10] Ibid, at [51].

^[11] Ibid at [51]-[55].

^[12] , 919 F.2d 1353, 1356–57 (9th Cir. 1990).

^[13] , 154 F.2d 464, 467 (2d Cir. 1946).

^[14] ., 905 F.2d 731, 733–36 (4th Cir. 1990).

^[15] Skidmore, supra note 1 at *4.

^[16] Ibid at *16.

^[17] Skidmore v. Led Zeppelin, No. 2:15-CV-03462-RGK-AGR, 2016 WL 2771246 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit); Ibid.

^[18] Ibid.

^[19] (1991), 38 C.P.R. (3d) 4.

^[20] Skidmore, supra note 1 at *16.

^[21] Ibid.

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In May 2015, Re:Sound, one of �䲹�Բ��岹’s various music licensing companies, published , a report about “the value of music to customers and businesses,” and the results are prominent: music does influence customers’ decisions. According to that report, 75% of��Canadians notice the music being played in bars and restaurants and 88% of Canadians enjoy hearing music in such establishments. Moreover, 80% of Canadians “feel that music in a bar [or] restaurant […] enhances their experience.” This appreciation often translates into very cogent actions such as making patrons stay longer, returning to the business in the future, and��recommending the place to others. Music, whether live or recorded, can be used as a powerful “marketing tool that adds value to businesses” and should therefore be carefully chosen.

This desire to hear music in eating and drinking establishments should emphasize, not trivialize, the source of that music. In fact, according to that report, “” Upon learning��that a business was not complying to music licensing laws,��almost 50% of Canadians would take some kind of action, including not recommending the establishment to others. And such reactions are not only true of Canadians. The report adds that��40% of��Swedish consumers would also have a negative opinion of a business if they discovered��it was using music illegally. Therefore, in order to take advantage of music as a means��to attract new clients, business owners must not only take in consideration what they play, but also its��legality. In Canada, that��means complying to the various rules surrounding performance rights.

�䲹�Բ��岹’s gives copyright owners the exclusive right to perform music works in public or to communicate them to the public by telecommunication. Such rights do not only include live performances but also the use of recorded music in a public setting. SOCAN (the Society of Composers, Authors and Music Publishers of Canada) and Re:Sound both provide business owners with multiple tariff licences applicable to various uses of music. Paying one copyright collective however licensees from paying the other.

SOCAN's�� is a licence to play (publicly perform) live music in an eating/drinking establishment. The annual fee for this specific licence is 3% of the yearly compensation for entertainment, for a minimum of $83.65 per year. Compensation for entertainment includes the artist’s remuneration as well as any tips given by customers or in-kind contributions from the business owner (free meals, transportation, etc.).

, on the other hand, allows those establishments to play recorded music accompanying live entertainment. Licensees are required to pay 2% of the annual compensation for entertainment, for a minimum of $62.74 per year. Re:Sound's equivalent to this licence, , demands 0.9% of the aforementioned compensation, for a minimum of $37.64 per year.

is probably the SOCAN licence that applies to the highest number of businesses, as it covers the use of music for background purposes. The annual fee depends on the size of the establishment: $1.23 per square metre or 11.46 cents per square foot;��and a��minimum yearly fee of��$94.51. Seasonal establishments are only required to pay half of the aforementioned rate, provided they are operating under��six months per year, though��the minimum annual fee applies nonetheless. Keep in mind that paying for a streaming service or online radio will not exempt business owners from paying this licence (digital music services such as Spotify have reiterated this in their and do not allow, in most cases,��commercial use of their platform). However, no royalties will be collected for the use of a radio receiving set.

On the other hand, , the comparable Re:Sound tariff in this case, requires fees that can be calculated in : "1) the total annual tickets sold or admissions multiplied by $0.000831; or if that is not available, 2) the total capacity of the establishment, multiplied by the number of days of operation in a year, multiplied by $0.001558; or, if that too is not available, then 3) the area of the establishment in square metres or square feet, multiplied by the number of days of operation in a year, multiplied by the number of days in operation in a year, multiplied by $0.002597 (per m2) or $0.000239 (per ft2)."

Finally, SOCAN's�� allows licensees to play recorded music for dancing. The annual fee is based on the establishment’s capacity as well as the days and months of operation. After a series of calculations based on those variables, the final number should be equal to the percentage required by SOCAN for this particular licence. , Re:Sound's comparable licence, also uses these variables to determine the required annual fee. The calculations will vary depending on whether the establishment can accommodate more than 100 patrons or not.

The Pan American Games will probably not have much of an impact on Toronto's already music scene, nor the way musicians are compensated for their work. But as they give restaurant and bar owners the chance to target a new consumer base, they also allow public performance rights to be discussed as an investment as opposed to a mandatory compensation. And as with most investments, rules need to be followed and content creators and performers��need to be remunerated.

��Aicha Tohry is an IPilogue Editor and a JD candidate at Université de Montréal.

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The Power of Norms

The research on social norms suggests that people generally obey the law because they think it is the right thing to do. In contrast, laws that starkly contradict social norms may encourage non-compliance and create criminogenic effects.[1] If the sociological and psychological research is correct, then the ability of Bill C-11 to single-handedly combat online copyright infringement will fall short. For instance, any attempt to curtail copyright infringement through the legal reinforcement of technological protection measures may have little effect if individuals do not believe in the efficacy of these technologies and the laws to begin with.

When the law is in line with social norms however, the law is typically abided by and enforcement is relatively easy given that the law is socially accepted. If social norms are not aligned with laws, disobedience is more probable, and given the scale of online music file sharing, enforcement will also be difficult without great costs.[2] To take an example, we believe that murder is intrinsically wrong and society does not have any problems complying with laws against murder. When it does happen, we inherently believe that the law should punish those who commit murder and we believe that murderers should be socially condemned. Even if there was no law against murder, it is unlikely that individuals would begin to kill one another – the social sanctions and innate understanding about appropriate conduct regarding taking another’s life would guide individuals.

��Universities: The Alignment of Norms with Law

These social norms and sanctions are simply not as strong with online music file sharing and copyright law. Nonetheless, smaller communities, rather than the government at large, have the ability to foster respect for intellectual property without strict recourse to the law. Take the example of university rules around plagiarism and academic integrity, which, as opposed to copyright laws, are often most salient for students. Students comply with academic rules and properly attribute their research not because of any particular legal justification, but also because of the social stigma in the academic community around those who plagiarize. The sanctions for plagiarism that a student would receive from university administration punish much in the same way that the law does. In addition, there is the social consequence of risking one’s career and having their work discredited, which is enough to deter most from plagiarizing. Hence, it is this interaction between regulatory consequences and social sanctions that likely affects behaviour.

As well, in one survey,[3] college students thought that file sharing was common practice and didn’t have any problems with it. However, they said that it would be less socially acceptable if those who did so were subject to shaming penalties, such as having their names published, and had their university Internet privileges taken away.[4] As a consequence, the survey results suggest that universities have a role to take in aligning social norms with the law by applying social sanctions to those who use the school’s Internet to engage in illicit online music file sharing. These two examples illustrate that, at least within the university community, there are many opportunities for strong social sanctions to effectively hinder infringing music downloads without strict recourse to formal laws or enforcement.

What is Next for Bill C-11?

This commentary is not asserting any justifications for the social norms of society, nor is it arguing that Bill C-11 will be an unsuccessful piece of legislation in addressing the challenges of the Internet and technology. However, what is necessary to understand is that Bill C-11 alone will likely not be enough to limit copyright infringement in the digital era. Social norms are a powerful determinative factor in dictating human behaviour. As a result, the challenges that technology and the Internet present must not only be addressed through the law but through an understanding of our social norms and interactions.

Alexander Ly is a JD candidate at Osgoode Hall Law School and is currently enrolled��in Osgoode's Law & Social Change: Law & Music course. As part of the course requirements, students are asked to write a blog on a topic of their choice.

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