When is music borrowing against the law? The case against “Stairway to Heaven”

Has the copyright case against “Blurred Lines” opened a floodgate of bands wanting monetary rewards for supposedly borrowed work? Take for example the case of the band Spirit suing Led Zeppelin over “Stairway to Heaven.” Read about it on NPR.

To summarize the NPR article, it takes a lot to prove that one song is stealing from another song. For example, they have to prove that the accused had access to the original song and probably listened to it (this is true in the "Stairway" case). In the end, though, song copyright infringement is really a theoretical question. What are the vital part of a song that makes it unique? Certainly melody, harmony, and rhythm. Yet, while rhythm and melody can be more distinct, many songs have similar harmonies. Also, similar types of melodies (such as arpeggiation) or rhythms are used over and over again. Yet despite the technical nature of the question (and the blurred lines between similar and a copy), it is interesting that expert witnesses or judges often don't make the final decisions, but juries.

But what about fair use? Parts of a copyrighted work can be included in a new work as long as the new work is transformative, meaning that it adds something new, with a different character, expression, meaning or message, or function. Artists recombine little bits of older material all the time. After listening to Spirit’s “Taurus,” I can only pick out one little guitar lick that is really similar—only part of a phrase. There is a striking similarity, yes, and there is an argument that this phrase has a similar aesthetic function, but the portion is so small and the surrounding music so different that I think there is very strong fair use case here.

My favorite part in the article was the last paragraph by Spirit’s lawyer:

"This lawsuit, it's in large part about having to re-educate the public that there was an individual called Randy California, and he was a phenomenal guitarist," Malofiy says. "And part of this is about re-educating the public [about] this relatively unknown song called 'Taurus.'"

First, why is this lawsuit about the public at all? The public doesn't argue the case, but lawyers, judges, juries, and musical experts. I don't think "juries" and "public" are the same thing. Also, now that I’ve been re-educated about “Taurus,” I’m pretty sure that they don’t have a case and that this lawsuit is a shameless money-grab.

Actually, “Stairway to Heaven” is so much more engaging than “Taurus,” I’m just going to put it right here. Notice that by minute 3, when most pop songs are ending (including “Taurus”), “Stairway" is just getting started—and still leaving you wanting to hear more.

If this does turn into a flood of lawsuits, perhaps the saddest thing is that Marvin Gaye’s estate didn’t sue Thicke and Williams—it was the other way around. Thicke and Williams issued a pre-emptive lawsuit, which already sounds guilty. Gaye’s estate would have probably done nothing by themselves. But we already knew from watching the video that these guys are creeps. At least they inspired one of Weird Al’s best songs. Let’s hope a failed “Stairway” suit will dam the possible flow.

Update 6/23/2016
Reason prevails and the jury clears "Stairway to Heaven" of plagiarism:
http://www.npr.org/sections/thetwo-way/2016/06/23/483263154/jury-clears-led-zeppelin-in-stairway-to-heaven-plagiarism-suit