Wednesday, October 29, 2014

Stairway to a settlement?


RANDY CALIFORNIA, the founding guitarist of the seminal Los Angeles-based rock group Spirit died on Jan. 2, 1997, in the act of rescuing his 12-year-old son Quinn from a vicious rip current off Molokai, Hawaii. He was 45.

He lived long enough to vent his spleen about something important with journalist Jeff McLaughlin in an interview in the winter 1997 issue of Listener magazine. “I’d say it was a ripoff,” California said. “And the guys made millions of bucks on it and never said ‘Thank you,’ never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.”

The “guys” referred to by California (given name: Randy Craig Wolfe) are the subjects of a lawsuit that, almost 18 years after the guitarist’s death, will revisit one of his songs and another one, a song that’s made its way into the pantheon of rock under other composers’ names.

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In 1968 Spirit released its eponymous debut album, which included the two-minute-37-second instrumental track “Taurus,” which was written by California, one of the band’s principal songwriters. What’s at issue in the lawsuit filed in May, in the U.S. District Court for the Eastern District of Pennsylvania, concerns the opening arpeggio of “Taurus” and its role in the composition of “Stairway to Heaven,” the eight-minute rock classic by “the guys,” Led Zeppelin, the famed British rock-blues band.



“What happened to Randy California and Spirit is wrong,” says part of the lawsuit. “Led Zeppelin needs to do the right thing and give credit where credit is due. Randy California deserves writing credit for "Stairway to Heaven" and to take his place as an author of Rock's greatest song,”

On Oct. 10, U.S. District Court Judge Juan Sanchez denied a motion to dismiss without prejudice, setting the stage for a jury trial to proceed — or, best case, a settlement to make a trial unnecessary. The case of Led Zeppelin et al. v. the Randy Craig Wolfe Trust is very much on.

From the June 2 Hollywood Reporter: “The plaintiff is demanding statutory damages, defendants' profits, punitive damages plus equitable relief in the form of an order that Wolfe is credited as a writer of ‘Stairway to Heaven.’ A footnote in the lawsuit indicates that funds obtained from the lawsuit will go into a trust whose proceeds go to buying needy children musical instruments.”

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UPI REPORTS: “To show infringement under U.S. copyright law, you generally need to demonstrate two elements: that an original work was copied to make something substantially similar, and that the copier had access to the original work.”

“Access” would certainly be provable. Led Zeppelin and Spirit toured together not long after the Spirit debut was released, and throughout 1969 — almost certainly sharing songs and ideas on the road, as bands have done forever.

UPI cites John Hartmann, a music scholar and lecturer at Loyola Marymount University in Los Angeles, who explained that if it comes to a trial, the case would become one of dueling musicologists battling over how similar the songs are or are not.

“In a court this would be measured by experts, and a jury would have to decide,” he says.

“Measured,” eh? O.K., just for the hell of it ... let’s try to do exactly that from the plaintiffs’ perspective. Let’s play lawyer pretend.

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“Good morning. Your Honor, we hold that the melody to ‘Stairway to Heaven’ is materially the same as the song by Randy California. And contrary to the assertions of defense counsel, the similarities don’t end with merely a repetition of the chord progression, which in and of itself isn’t protected by copyright. Nor do they end with ‘Stairway’s’ beginning. The “Taurus” melody is the literal underpinning for much of what follows throughout the eight minutes of ‘Stairway,’ not just the opening passages. And we contend it’s similarity not obscured by amplification or the lyrics on top of the melody.

“Please indulge a granular explanation:



“We contend that the opening two minutes and 15 seconds of ‘Stairway’ are a virtual note-for-note transcription of ‘Taurus,’ with little adornment or variation. It’s our position that this 28 percent of ‘Stairway,’ give or take, is indisputably the provenance of Mr. California.

“Further, Your Honor, the antecedent melody is used intermittently throughout the remaining six minutes, or 75 percent of ‘Stairway,’ interlaced with transitional passages originating with Led Zeppelin. ‘Stairway’ is a layer cake of a song, Your Honor — one you can actually put to stopwatch courtesy of any YouTube video with a recording of the song in question.

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THE FIRST inarguable Led Zeppelin passage occurs at 2 minutes 15 seconds, and lasts 25 seconds. That’s followed by a return to the California melody, about 28 seconds long (from 2:40 to 3:08). That’s followed by another Led Zep passage, lasting 21 seconds (from 3:09 to 3:30), which is followed by a return to the antecedent melody by Mr. California, lasting 29 seconds (from 3:31 to the 4-minute mark).

“Nineteen seconds follow from Led Zep’s brow, from 4:01 to 4:20. Then it’s back to the California melody for 24 seconds (4:21 to 4:45). Then back again to a Led Zep passage for 22 seconds (4:46 to 5:08), and again back to the California melody for 24 seconds (5:09 to 5:33). And then, we finally return to the closing hammer of the gods a la Led Zeppelin for the remaining 2 minutes and 26 seconds of the song.

“This last 2:26, Your Honor, is the greatest departure from Mr. California’s undergirding melody, and would seem to be wholly Led Zep’s own invention, as is the admittedly legendary guitar solo work by co-defendant Jimmy Page throughout that time.

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“Computing then: if we concede the final 2:26 is wholly Led Zep’s creative entity, that comprises about 31 percent of ‘Stairway’ whose origins with Led Zep is uncontested.


“Accepting the opening 2:15 of ‘Stairway’ is a direct appropriation of ‘Taurus,’ that 28 percent is the work of Randy California.

“About 59 percent of the source of the song is thus decided. We contend that leaves the remaining 41 percent of the song in dispute.

“Each of the other ‘layers’ previously described — everything but the beginning and the ending — averages 24 seconds. There are eight of them, four obvious appropriations of the California melody, four apparent instances of Led Zep’s own invention. Thus evenly balanced numerically, the remaining 41 percent of ‘Stairway to Heaven’ is properly evenly divided between Led Zeppelin and the assigns and heirs of Randy California.

“Fifty percent of 41 percent equals 20.5 percent. That plus the 28 percent (from the song’s opening) equals 48.5 percent. Your Honor, we respectfully contend that this figure is how much of this enduring rock classic originated with Randy California.”

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AS TO THE other “how much,” the big one? In 2008, Condé Nast Portfolio magazine estimated that “Stairway to Heaven” had to that point earned at least $562 million in royalties and record sales — an estimate that may or may not include publishing, digital downloads and music licensing for public performance. Using that figure as a jumping-on point — the amount’s certainly increased in the last six years, and even in recent days — we’re looking at $272.5 million, straight math (48.5 percent of $562 million).



Just for grins, let’s assume for argument’s sake that the $562 million is fat — inflated by, oh, say, 10 percent. Make the total amount $505.8 million. In that case, on the basis of straight math, LZ may be looking at cutting a check for $245.3 million (48.5 percent of $505.8 million), minus lawyers and court costs (God only knows what’s left after that).

Admittedly, this is about as unscientific as it gets. But if a court is tasked with trying to figure out how much the Randy Craig Wolfe Trust, its heirs and/or assigns are due from past “Stairway” sales ... well, “how much” is a phrase that’s fundamentally mathematical. If this little scenario isn’t exactly the way damages will be decided in this case, it can’t be that far off.

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It probably won’t come to anywhere near those astronomical sums, of course. If the plaintiff’s claims are upheld, it’ll almost certainly mean that Randy California’s name will be added to the “Stairway” song credits “in perpetuity.”

And it wouldn’t be Led Zep’s first legal rodeo in that department. The Daily Mail (UK) reported in May that “[a]lbum listings for Whole Lotta Love, Babe I'm Gonna Leave You, The Lemon Song and Dazed And Confused have all had to be amended to include names of artists which courts ruled were the true originators of the music.” Other songs credited to Led Zeppelin actually originated with Jake Holmes, Albert King, Bert Jansch, Howlin’ Wolf, Willie Dixon, Eddie Cochran and others. Several others. Songwriting credits for Led Zeppelin have been, uh, adjusted to reflect just that.



So, hopefully the matter of Led Zeppelin vs. the Randy Craig Wolfe Trust won’t be a battle with no quarter. Maybe the plaintiffs can look forward to a settlement that’s more than chump change, hopefully sparing us a Battle of Evermore ... in court. On the weight of abundant audible evidence, in this case and others, that’d be a legal stairway that the surviving members of a certain British band really don’t want to climb.

Image credits: Randy California: Michael Ochs Archives/Getty Images. Spirit album cover: ©1968 Ode Records. Led Zeppelin IV album cover: © 1971 Atlantic Records.

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