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Court agrees to listen to Led Zeppelin in ‘Stairway’ appeal

UPDATED: Mon., June 10, 2019, 9:39 p.m.

In this Oct. 9, 2012  photo, Led Zeppelin guitarist Jimmy Page, left, and singer Robert Plant appear at a news conference ahead of the worldwide theatrical release of “Celebration Day,” a concert film of their 2007 London O2 arena reunion show, in New York. A panel of 11 judges from the 9th U.S. Circuit Court of Appeals agreed Monday, June 10, 2019, to hear Led Zeppelin’s appeal in a copyright lawsuit alleging the group stole its 1971 rock epic from an obscure 1960s instrumental. (Evan Agostini / AP)
In this Oct. 9, 2012 photo, Led Zeppelin guitarist Jimmy Page, left, and singer Robert Plant appear at a news conference ahead of the worldwide theatrical release of “Celebration Day,” a concert film of their 2007 London O2 arena reunion show, in New York. A panel of 11 judges from the 9th U.S. Circuit Court of Appeals agreed Monday, June 10, 2019, to hear Led Zeppelin’s appeal in a copyright lawsuit alleging the group stole its 1971 rock epic from an obscure 1960s instrumental. (Evan Agostini / AP)
New York Daily News

Led Zeppelin’s “Stairway to Heaven” copyright battle will get a rare encore in the 9th Circuit Court of Appeals after the court muted an earlier ruling calling for a new trial.

In the surprise decision Monday, the venerable court vacated a September ruling from one of its three-judge panels and said the high-profile case will now go before 11 of its judges to determine what should happen next.

The case centers on claims Zeppelin’s 1971 megahit “Stairway to Heaven” stole elements from the 1966 song “Taurus” by late Los Angeles guitar prodigy Randy Wolfe.

Both sides had asked for the larger, so-called “en banc” review of different aspects of the complex September ruling from the three-judge panel.

Led Zeppelin’s lawyers requested it by saying the 2016 verdict that found no wrongdoing or infringement on the part of the British band should stand.

Lawyers for Wolfe’s estate, meanwhile, said the September ruling erred in its finding that the “deposit copy” sheet music for “Taurus,” as opposed to sound recordings of the song from Wolfe’s band Spirit, represented the scope of what could be protected by copyright.

In its ruling, the three-judge panel said the “district court correctly ruled that sound recordings of ‘Taurus’ as performed by Spirit could not be used to prove substantial similarity.” But in somewhat of a split decision, it said the judge was wrong to block recordings of “Taurus” for the purpose of demonstrating Led Zeppelin had “access” to the song.

Francis Malofiy and AJ Fluehr, the lawyers for Wolfe’s estate, said Monday they were “gratified” by the 9th Circuit’s decision, saying it proved “an en banc rehearing of the deposit copy issue is appropriate.”

“The issue has national implications for artist rights and the prior ruling was incorrect,” they said in a statement to the New York Daily News. “This is a big step for the creatives against the industry.”

They claimed the re-hearing will be limited to their petition, but the court’s ruling was not specific in that regard, instead stating that the review related to “these cases” and that the three-judge ruling from September “shall not be cited as precedent by or to any court of the 9th Circuit.”

Lawyers for Led Zeppelin did not immediately respond to a request for comment.

Michael Skidmore, the trustee of Wolfe’s estate, filed the underlying lawsuit in 2014, more than a decade after Wolfe died in a tragic 1997 drowning accident while saving his son from a riptide in Hawaii.

Plant and Page both testified at the six-day trial in 2016 and were adamant they didn’t steal their opening guitar riff from Wolfe’s song.

“We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years,” Page and Plant said in a joint statement after the verdict.

“We appreciate our fans’ support, and look forward to putting this legal matter behind us,” they said.

Speaking after the verdict, Wolfe’s sisters blasted the trial judge for the decision that blocked jurors from listening to an actual recording of Wolfe playing his composition on his guitar.

Jurors were asked to compare only in-court performances from musicians hired on both sides of the case, with the plaintiff’s guitar version predictably sounding more similar to “Stairway” than the defense rendition played on a piano.

“The jury didn’t get to compare apples to apples because they never got to hear Taurus. There’s no way they could make a ruling in our favor with what they had to listen to,” sister Marla Randall previously told the Daily News.

Plant, 70, and Page, 75, both testified at the trial and described for jurors their recollection of how they wrote their epic eight-minute song.

Plant said the song was composed in a dilapidated manor in rural Hampshire, England, during brainstorming sessions with Page on guitar.

He recalled sitting with Page by a fire and “ruminating” about music as they toyed with “lots of pieces randomly” and “developed new stuff.”

Wolfe, meanwhile, was a guitar prodigy who worked with Jimi Hendrix and was nicknamed Randy California by the Rock and Roll Hall of Famer.

Wolfe’s sisters said their brother considered suing before his death but didn’t have the money to pursue a claim and heard from an attorney that the statute of limitations had passed.

“All we and our brother Randy ever wanted was acknowledgement that he was the true author of the intro to ‘Stairway to Heaven,’” sister Janet Wolfe said after the verdict.

Led Zeppelin’s victory in 2016 came after a different Los Angeles jury decided Robin Thicke and Pharrell Williams infringed on Marvin Gaye’s “Got to Give It Up” with their hit song “Blurred Lines.”

Gaye’s family was awarded $7.4 million, a figure that a judge later reduced to $5.3 million.

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