No.

________

IN THE
SUPREME COURT OF THE UNITED STATES
______________________

Michael Skidmore, Trustee for the Randy Craig Wolfe Trust,

Petitioner
v.

Led Zeppelin, et al.,

Respondents

_______________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit.

PETITION FOR A WRIT OF CERTIORARI

______________________

Alfred J. (AJ) Fluehr, Esquire

Counsel of Record
FRANCIS ALEXANDER LLC
280 N. Providence Road | Suite 1
Media, PA 19063
(215) 341-1063
aj@francisalexander.com

Attorney for Petitioner,

Michael Skidmore, Trustee for the
Randy Craig Wolfe Trust

Dated: August 6, 2020

 i

Question Presented 1

1909 1910 1911 1912 1913 1914 1915 1916 1917 1918 1919 1920 1921

1922 1923 1924 1925 1926 1927 1928 1929 1930 1931 1932 1933 1934

1935 1936 1937 1938 1939 1940 1941 1942 1943 1944 1945 1946 1947

1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960

1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973

1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986

1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

2013 2014 2015 represent the 106 years that the courts of this nation recognized

that musical works were protected as created and fixed in a tangible medium under

the Copyright Act of 1909—and that the deposit requirement was a technical

formality. In those 106 years not one copyright trial was limited or controlled by the

deposit, which was usually an incomplete outline of the song.

The Ninth Circuit’s en banc decision, holding that only paper sheet music

deposits have copyright protection under the 1909 Act, will likely divest hundreds of

thousands of songs of copyright protection. Thus, a question of first impression arises

for this Court under the Copyright Act of 1909:

Whether or not the Ninth Circuit Court of Appeals sitting en banc correctly held

that musical copyright protection under the Copyright Act of 1909 is limited to sheet

music deposits—and only sheet music deposits—or whether songs under the 1909 Act

are protected as created and fixed in a tangible medium?

 ii

Question Presented 2

The Supreme Court has defined and established the concepts of originality and

selection and arrangement in Feist Publications, Inc. v. Rural Telephone Service Co.,

499 US 340 (1991), with it and the Courts of Appeal holding them to be fundamental

aspects of copyright law and the extrinsic test.

Originality is a constitutional requirement for copyright protection, but is an

extremely low bar. Selection and arrangement allows for the protection of

combinations of otherwise unprotectable elements as long as the combination is

original. Both concepts have widely and faithfully been applied since Feist by all the

Courts of Appeal.

The Ninth Circuit’s en banc opinion, however, redefined originality,

significantly heightening the requirement in contradiction to Feist. It also held that

selection and arrangement is not a necessary instruction for the extrinsic test.

This question of first impression for this Court is:

Whether Ninth Circuit Court of Appeals was permitted to fundamentally alter

wide swaths copyright precedent regarding the extrinsic test—namely originality, and

selection and arrangement—in a way that directly challenges binding Supreme Court

precedent to the contrary?

 iii

Parties to the Proceedings

The Petitioner, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust

was the Appellant below before the United States Court of Appeals for the Ninth

Circuit.

The Respondents are the band Led Zeppelin; James Patrick Page; Robert

Anthony Plant; John Paul Jones; Super Hype Publishing, Inc.; Warner Music Group

Corporation, Atlantic Recording Corporation; and Rhino Entertainment Company.

Statement of Related Proceedings

Skidmore v. Led Zeppelin, 952 F. 3d 1051 (16-56057; 16-56287) (9th Cir. March

9, 2020) (en banc); Skidmore v. Led Zeppelin, 925 F. 3d 999 (16-56057; 16-56287) (9th

Cir. June 10, 2019) (granting rehearing); Skidmore v. Led Zeppelin, 905 F.3d 1116

(16-56057; 16-56287) (9th Cir. Sept. 28, 2018) (panel opinion); Skidmore v. Led

Zeppelin, 2:15-cv-03462 (C.D. Cal. July 8, 2016) (judgment on jury verdict); Skidmore

v. Led Zeppelin, 2:15-cv-03462 (C.D. Cal. April 9, 2016) (granting in part, denying in

part SJ); Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581 (E.D. Pa. May 6, 2015).
 iv

Table of Contents

Page

Questions Presented for Review ................................................................................... i

Parties to the Proceedings .......................................................................................... iii

Statement of Related Cases ........................................................................................ iii

Table of Authorities ....................................................................................................... v

Opinions Below ............................................................................................................ 1

Jurisdiction ................................................................................................................... 1

Constitutional and Statutory Provisions Involved ...................................................... 1

Statement of the Case ................................................................................................. 2

Reasons for Granting the Petition ............................................................................. 11

Conclusion ................................................................................................................ 34
 v

Table of Authorities

Cases: Page

ABKCO Music, Inc. v. LaVere, 217 F.3d 684 (9th Cir. 2000) .............................. 5, 13, 21

ATC Distribution Group, Inc. v. Whatever It Takes Transmissions,

402 F. 3d 700 (6th Cir. 2005) ................................................................................................ 25

Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ............................. 22

Christian Louboutin v. Yves Saint Laurent America, 696 F. 3d 206

(2d Cir. 2012) ............................................................................................................................ 25

Cosmetic Ideas, Inc. v. IAC/lnteractivecorp., 606 F.3d 612

(9th Cir. 2010) ...........................................................................................................................14

Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991)....... passim

Griffin v. Sheeran, No. 17 Civ. 5221 (LLS) (S.D.N.Y. March 24, 2020) .................. 5, 21

Home Legend, LLC v. Mannington Mills, Inc., 784 F. 3d 1404,

(11th Cir. 2015) ........................................................................................................................ 25

Kelley v. Chicago Park Dist., 635 F. 3d 290 (7th Cir. 2011) .......................................... 25

La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995) ........................5, 13, 16, 21

McCulloch v. Albert E. Price, Inc., 823 F. 2d 316 (9th Cir. 1987) .................................28

Oracle America, Inc. v. Google Inc., 750 F. 3d 1339 (Fed. Cir. 2014) ...............25, 26, 30

Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F. 3d 946, 958 (9th. Cir. 2012)

(Fletcher, J) (concurring), rev’d 134 S. Ct. 1962, 188 L. Ed. 2d 979, 572
US 663 (2014). ............................................................................................................................ 2

Roy Export Estab. v. Columbia Broadcasting, 672 F.2d 1095

(2d Cir. 1982) ............................................................................................................................ 13

Skidmore v. Led Zeppelin, 952 F. 3d 1051, 1064 (9th Cir. 2020) (en banc) ........ passim

Societe Civile Succession Guino v. Renoir, S49 F .3d 1182 (9th Cir. 2008) ............... 14

Society of Holy Transfiguration v. Gregory, 689 F. 3d 29 (1st Cir. 2012) .................. 25

 vi

Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) ......................................................... passim

Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) ......................... passim

US v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................22

White-Smith Music Publishing Co. v. Apollo Co., 209 US 1, 28 S. Ct. 319,

52 L. Ed. 655 (1908) .....................................................................................................12, 14, 22

Statutes & Rules

28 U.S.C.A. 1254(2) ....................................................................................................................1

Copyright Act of 1909, ch. 320, § 1 et seq., 35 Stat. 1075, 1075 (1909) (repealed
1976) .................................................................................................................................... passim

Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 ........................................ passim

U.S. Const., Amdt. 5................................................................................................................. 21

Ninth Circuit Rule 35-2 ..................................................................................................... 33-34

FRAP 35 ................................................................................................................................ 33-34

Other Authorities

HR Rep. No.94-1476, at p.129-31 (1976) .......................................................................13, 14

U.S. Copyright Office, Compendium of U.S. Copyright Office Practices. §

504.2 (3d ed. 2017) ....................................................................................................................17

Ninth Circuit Model Jury Instruction 17.13 .......................................................................25

Alexander Kaplan, Sandra Crawshaw-Sparks, Simona Weil, Led Zeppelin Ruling is

Already Affecting Copyright Litigation, PROSKAUER (April 3, 2020, available at
https://www.proskauer.com/uploads/led-zeppelin-ruling-is-already-affecting-
copyright-litigation ................................................................................................................6, 32
 1

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Michael Skidmore, Trustee for the Randy Craig Wolfe Trust,

respectfully petitions this Court for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the Ninth Circuit sitting

en banc and affirming the lower court, following the grant of rehearing, is dated

March 9, 2020. (App. 1). The Order of the United States Court of Appeals for the

Ninth Circuit vacating the jury’s verdict is dated September 28, 2018. (App. 74). The

SJ order of the district court is dated April 8, 2016, denying in part and granting in

part Led Zeppelin’s motion for summary judgment. (App. 114). The motion in limine

orders of the district court are dated April 25, 2016. (App. 111).

JURISDICTION

Jurisdiction in this Court is founded under 28 U.S.C.A. 1254(2) since it is a

question for Writ of Certiorari from the United States Court of Appeals for the Ninth

Circuit.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The question presented is one that arises under the Copyright Act of 1909, ch.

320, § 1 et seq., 35 Stat. 1075, 1075 (1909) (repealed 1976), and Copyright Act of 1976,

Pub. L. No. 94-553, 90 Stat. 2541.

 2

STATEMENT OF THE CASE

It is fitting, perhaps, that the future of music copyright law be decided by a

case about rock n’ roll’s most iconic song, “Stairway to Heaven.”

The Ninth Circuit’s en banc opinion erodes the foundations of copyright law to

the point of being unrecognizable. In the process, it deliberately ignores stare decisis

and directly challenges binding precedent from this Court.

The opinion is a disaster for the creatives whose talent is often preyed upon.

By the same token, it is a gift to the music industry and its attorneys—

enthusiastically received—by a circuit whose own judge once observed: “Our circuit

is the most hostile to copyright owners of all the circuits.” 1 The “Court of Appeals for

the Hollywood Circuit” has finally given Hollywood exactly what it has always

wanted: a copyright test which it cannot lose. Portending what is to come, in the days

following the decision’s filing multiple major copyright rulings have already

dramatically favored industry defendants.

The proverbial canary in the coal mine has died; it remains to be seen if the

miners have noticed.

Plaintiff-Petitioner Michael Skidmore alleges that the creator of the famous

introduction to “Stairway to Heaven” was not Led Zeppelin guitarist defendant

Jimmy Page. Instead, he alleges that Page stole the introduction from the song

1Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F. 3d 946, 958 (9th. Cir. 2012) (Fletcher,
J) (concurring), rev’d 134 S. Ct. 1962, 188 L. Ed. 2d 979, 572 US 663 (2014). Judge
Fletcher was specifically referring to the use of laches to bar copyright claims.
 3

“Taurus” written by guitar prodigy Randy Wolfe of the 1960s and 70s psychedelic

rock band Spirit (nicknamed Randy California by Jimmy Hendrix). 2

A quick listen to “Taurus” and “Stairway to Heaven” as they were sold to the

public makes it quite clear that Mr. Page undoubtedly used “Taurus” to create the

nearly identical introduction in “Stairway to Heaven.” An expert comparison of the

compositions of the two songs concluded that they are strikingly similar and

practically identical. See, e.g., Opening Br., at 34, Reply Br., at 25-27, 31-36,

Skidmore v. Led Zeppelin, (No. 16-56057) (experts explaining that the full

composition of “Taurus” heard and copied by Page is strikingly similar to “Stairway

to Heaven”).

The jury in the underlying trial unequivocally found that Page and the Led

Zeppelin defendants had access to “Taurus.” Led Zeppelin and Page opened for Spirit

in 1968, played several shows with them, covered a Spirit song, owned Spirit albums

which included “Taurus,” and Mr. Page also extensively praised Spirit in interviews

before and after “Stairway to Heaven’s” creation and release in 1971.

Yet, despite ironclad evidence that Page and Led Zeppelin had access to

“Taurus,” and expert reports stating that the songs were striking similar, the jury

delivered a verdict for defendants. Why did this happen?

2 Skidmore is Trustee of the Randy Craig Wolfe Trust, a charity focused on providing
instruments and education to public school students, which owns Wolfe’s interest in
“Taurus”.
 4

The Ninth Circuit En Banc Opinion Upends 106 Years of Precedent

under the Copyright Act of 1909 by Holding that Musical Works can only
be Protected as Sheet Music Deposits, Not as Created and Fixed in a
Tangible Medium
The reason for the defense verdict was that the district court never permitted

the jury to hear a comparison of “Taurus’s” composition as created and fixed on an

album, which is the composition Page had access to and copied from. The jury had no

idea the songs were strikingly similar because it was never permitted to hear or

compare them.

The district court, affirmed by the Ninth Circuit Court of Appeals sitting en

banc, held that only sheet music could be copyrighted under the 1909 Act and limited

the substantial similarity comparison to the registration deposit. This was, and is, an

issue of first impression anywhere in the nation. (App. 100).

This limitation was legally baseless, and premised on the incorrect and

ahistorical assumption that only sheet music could be copyrighted under the 1909

Act. Works under that Act were in actuality protected as they were created, whatever

the medium. In 106 years of applying the 1909 Act no court in the country had ever

previously held or contemplated that the deposit controlled the scope of a 1909 Act

copyright.

The dire consequences of the en banc opinion to copyright owners cannot be

understated. If copyright protection under the 1909 Act is limited to deposit sheet

music, then virtually all songs composed before 1978 will lose almost all copyright

protection because the lead sheets submitted for them were uniformly incomplete.

This includes “Stairway to Heaven.”

 5

The last time the Ninth Circuit did something like this, in La Cienega, it was

forced to later acknowledge that it wrongly “took that settled law [of the last 100

years] and cast it on its head, threatening to thrust into the public domain hundreds

of thousands of musical works which presently enjoy copyright protection.” ABKCO

Music, Inc. v. LaVere, 217 F. 3d 684, 690-91 (quoting 143 Cong. Rec. H9882 (1997)).

Remarkably, it has done the same thing again.

Demonstrating that Petitioner’s fears and warnings are not illusory, within

just days of the en banc opinion being issued it was used by a district court in the

Second Circuit as the sole basis to artificially limit copyright protection in the

plaintiff’s musical work in a major case case superstar artist Ed Sheeran. See, e.g.,

Griffin v. Sheeran, No. 17 Civ. 5221 (LLS) (S.D.N.Y. March 24, 2020). Cases under

the 1909 Act are common, and will continue to be for the foreseeable future,

necessitating that this Court address the Ninth Circuit’s holding before the damage

becomes irreversible.

The Ninth Circuit En Banc Opinion Baselessly Altered the Extrinsic

Test in A Way that Violates Binding Precedent of this Court, and
Completely Undermines the Substantial Similarity Comparison

In addition to the deposit copy problem, which solely affects 1909 Act cases,

the en banc opinion has also directly challenged binding precedent by this Court on

copyright protection and how to conduct the extrinsic substantial similarity test,

including for cases under the 1976 Act.

Specifically, this Court in Feist Publications, Inc. v. Rural Telephone Service

Co. made it unambiguously clear that originality and selection and arrangement are

foundational concepts for copyright law. 499 US 340 (1991). In Feist, this Court held
 6

that originality is a constitutional requirement and low bar, and that it requires no

more than that the work in question have a modicum of creativity and not be copied

from any other source. Id. Feist also observed that the combinations of elements

together, even if those elements are unprotectable, are to be afforded copyright

protection if original. Id.

Despite Feist’s binding precedent, and faithful application by all the Courts of

Appeals since Feist was decided, the Ninth Circuit en banc decides to baselessly

redefine originality as a high bar to gaining copyright protection. It also eliminates

the concept of selection and arrangement from the extrinsic test. These holdings,

which directly violate Feist, are matters of first impression for this Court.

The dissenting judges candidly observe that by eliminating selection and

arrangement the en banc court “weakens copyright protection for musicians by

robbing them of the ability to protect a unique way of combining musical

elements.” (App. 66, 73) (emphasis added). The dissent is warning that the harm

stemming from the en banc opinion will not be limited to Petitioner’s case and is in

fact intended to alter copyright law going forward.

If this Court does not grant this petition, and fails to reaffirm the basic

principles explained in Feist, there will be cascading and irrevocable effects

throughout the country. The Ninth Circuit is one of the copyright circuits, and its

stature often gives its copyright decisions an added national importance.

Already the en banc decision has been applied in extraordinary ways, which

has the music industry and its lawyers praising the decision. See Alexander Kaplan,
 7

Sandra Crawshaw-Sparks, Simona Weil, Led Zeppelin Ruling is Already Affecting

Copyright Litigation, PROSKAUER (April 3, 2020, available at

https://www.proskauer.com/uploads/led-zeppelin-ruling-is-already-affecting-

copyright-litigation (stating that en banc decision has “turned the tide of music

copyright infringement law toward defendants, limiting what courts will find

protectable and what they will permit a jury to consider when asked to find unlawful

copying”).

Most notably, days after the decision came out it was used to vacate the “Dark

Horse” verdict against Katy Perry in the Central District of California. Gray v. Katy

Perry, 2:15-cv-05642 (C.D. Cal. March 16, 2020). That district court applied the

baseless formulations of originality and selection and arrangement used by the Ninth

Circuit’s en banc opinion to upend the jury’s verdict.

The effect of this ruling is a gift to the industry, a disaster for independent

artists, and spells the end of any real copyright protection for musical works.

I. Factual Background

In late 1966 through the summer of 1967 Randy Wolfe’s band Spirit played

every week in Hollywood at a club called the Ash Grove. (App. 115). Wolfe was

professionally known by the nickname Jimmy Hendrix gave him, Randy California.

One of the songs Spirit played every night was “Taurus”. Id. The recordings of Spirit

playing the Ash Grove show that the composition of “Taurus” was in a concrete,

definite, and final form in early to mid-1967. Id. Later in 1967, Wolfe signed a

recording contract. Id. The first Spirit album was released in late 1967. Id. The
 8

publisher, Hollenbeck, then filed a copyright for “Taurus” that listed Randy Wolfe as

the author. Id. As part of the copyright registration packet, an incomplete deposit

copy lead sheet was transcribed by a “B. Hansen,” not by Randy California or any

other member of the band. Opening Br., at 15, Skidmore v. Led Zeppelin (16-56057).

Plaintiff’s experts even the defense expert guitarist Rob Mathes observed that the

lead sheet was incomplete. See, e.g., Opening Br., at 34, Reply Br., at 25-27, 31-36,

Skidmore v. Led Zeppelin, (No. 16-56057).

This lawsuit alleges that Led Zeppelin, and defendants Jimmy Page and

Robert Plant, copied “Taurus” to create the beginning to “Stairway to Heaven.” A jury

found that Page and Plant had access to “Taurus” because Page and/or Plant owned

the eponymous Spirit album that included “Taurus,” owned many Spirit albums,

heard “Taurus” live in concert, opened for Spirit, covered Spirit songs, and were

friends with the members of Spirit. (App. 14, 25, 58).

II. Procedural Background

1. The Trial - Defendants filed for summary judgment on many issues,

including alleging that the paper sheet music deposit was incomplete, contesting

access and asserting independent creation, and asserting that the works were not

substantially similar. Plaintiff opposed.

The District Court held under Three Boys Music that the deposit was

jurisdictional in nature, and that the inaccuracies in the deposit were not fraudulent

or prejudicial and that it had subject matter jurisdiction. (App. 121-22). The Court,

however, also held that the deposit controlled the scope of protected expression in a
 9

musical copyright under the 1909 Act. The Court limited the substantial similarity

comparison to the exact notes on the deposit lead sheet. (App. 129). This was a huge

victory for Led Zeppelin, because when the album compositions of both songs are

heard side by side (the full composition of “Taurus” that Page heard and the “Stairway

to Heaven” composition that Page later created based on “Taurus”), it becomes

unambiguously clear that Page took the song verbatim from Randy California. See,

e.g., Opening Br., at 34, Reply Br., at 25-27, 31-36, Skidmore v. Led Zeppelin, (No.

16-56057). The inaccurate deposit sheet music is less similar to Stairway than full

“Taurus” composition. Id.

The Court then held that there was material dispute of fact based on

substantial similiarity and access. (App. 130-31). At the motion in limine phase, the

Court again strictly limited the substantial similiarity comparison to the exact notes

on the deposit lead sheet, over Plaintiff’s objection. (App. 111).

The jury’s verdict found that Plaintiff owned the copyright, and that

Defendants had access to “Taurus,” but found for Defendants on the extrinsic test.

(App. 134). Plaintiff timely appealed.

2. A Ninth Circuit Panel Vacates the Jury Verdict

Plaintiff’s appeal included challenges to the district court’s decision to restrict

the substantial similarity comparison to the deposit copy, the failure to apply the

Three Boys Music prejudice analysis to inaccuracies in the deposit copy, and the

incorrect extrinsic test jury instructions (the originality instructions, and the omitted

selection and arrangement instruction).

 10

The panel vacated the jury verdict and remanded for a new trial. (App. 74).

The panel upheld the district court’s decision on the deposit copy, affirming that it

controlled the scope of a 1909 Act musical copyright. (App. 104). It did not address

the Three Boys Music prejudice analysis. The Panel, however, easily concluded that

the extrinsic test instructions on originality and selection and arrangement were

prejudicial error. “Given that nothing else in the instructions alerted the jury that

the selection and arrangement of unprotectable elements could be copyrightable,

‘looking to the instructions as a whole, the substance of the applicable law was [not]

fairly and correctly covered.’” (App. 90).

3. Plaintiff Filed a Petition for Limited Rehearing on the Deposit

Copy Issue; Defendants Filed for Rehearing on the Jury
Instructions; the Court Granted En Banc Rehearing

Following the panel opinion vacating the jury verdict, plaintiff Skidmore filed

for a limited rehearing en banc on the two aspects of the deposit copy issue: (1) noting

that a deposit was never meant to control the scope of copyright under the 1909 Act,

and (2) even if a deposit controlled the scope of copyright, Defendants would suffer no

prejudice if the full composition they were alleged to have copied was used. Skidmore

did so despite the successful appeal because the way that the deposit argument was

being analyzed enervated his ability to fairly prove his case, and would similarly

deprive thousands of copyright owners of ownership in their rights.

At the same time, Defendants filed for rehearing regarding the jury

instructions. The issues that Defendants filed for rehearing on were overwhelmingly

not suitable for en banc review.

 11

Rehearing was then granted. Skidmore v. Led Zeppelin, 925 F. 3d 999 (9th Cir.

June 10, 2019) (granting rehearing).

4. The Ninth Circuit Sitting En Banc Affirms the District Court Jury
Verdict
The en banc court affirmed the jury verdict. (App. 1) The opinion first analyzes

the deposit copy issue. As the panel did, the en banc opinion erroneously claimed that

only sheet music could be copyrighted under the 1909 Act, failing to accord proper

significance to the fact that the common law governed the creation of copyright. (App.

22). The opinion failed to address why the inaccuracies in the “Taurus” lead sheet

should be disregarded under Three Boys Music where there was no prejudice to the

Defendants.

The opinion then went on to affirm the jury instructions on selection and

arrangement and originality. (App. 33, 39). A dissent was filed from the opinion’s

conclusion on the selection and arrangement jury instructions, noting that Skidmore

had unambiguously presented a selection and arrangement theory at trial and that

the failure to give the instruction “cut the heart out” of Plaintiff’s case. (App. 65).

REASONS FOR GRANTING THE PETITION

I. The Court Should Grant the Petition Because the Ninth Circuit Court
of Appeals Erroneously Held that A 1909 Copyright Act Musical
Composition is Limited to Sheet Music; A 1909 Act Composition is
Actually Protected as Created and Fixed in a Tangible Medium

There is a common misconception among lawyers and the judiciary that, under

the Copyright Act of 1976, copyrighted works were for the very first time protected at

the moment they were fixed in a tangible medium. It is also widely believed that

under the 1909 Copyright Act musical works could only be protected as sheet music
 12

and that creation and fixation were irrelevant. See, e.g., Skidmore v. Led Zeppelin,

952 F. 3d 1051, 1064 (9th Cir. 2020) (en banc) (erroneously stating that “the deposit

copy defines the four corners of the “Taurus” copyright”). Undergirding this is a belief

that the theoretical foundations of copyright law as we know it today were not as

developed in 1909, and that the 1909 Act rotely promoted form over substance. This

is legally and historically false as applied to copyright creation, protection, and the

the deposit copy.

Congress and the circuit courts—including many prior rulings of the Ninth

Circuit—have repeatedly confirmed that unpublished works are protected as

created under the 1909 Act, not as they were deposited. This is immutable historical

fact. Registration and deposit were jurisdictional formalities, not substantive ones,

meant to confer federal protections, the ability to file suit, and for archival purposes.

Furthermore, Justice Oliver Wendell Holmes’s concurrence in White-Smith

Music Publishing Co. v. Apollo Co., 209 US 1, 28 S. Ct. 319, 52 L. Ed. 655 (1908)—a

concurrence which became the basis for the 1909 Act—explains at length that musical

compositions are protected as created, not as they appear on paper. The Ninth

Circuit’s failure to ascertain the intellectual foundation of the 1909 Act led to its

erroneous belief that only paper sheet music had copyright protection under the 1909

Act.

If this petition is denied, and the Ninth Circuit’s opinion reversed, it will divest

virtually every owner of a 1909 Act musical work of their copyright.

 13

a. Congress and the Courts of Appeal Confirm that Works were

Protected as Created and Fixed in a Tangible Medium under the
1909 Act, Not as Deposited; Not One Case in 106 Years Ever Used
a Deposit Copy as a Basis for the Substantial Similarity
Comparison

Under the 1909 Copyright Act there was a dual common law-federal system:

initial common law copyright protection vested upon the work’s creation and fixation

in a tangible form, and then the already existing copyrights could receive federal

jurisdiction and protections when registered or published, as explained by Congress

when drafting the 1976 Act. See HR Rep. No.94-1476, at p.129-31 (1976) (stating that

under the 1909 Act there was “a dual system of ‘common law copyright’ for

unpublished works and statutory copyright for published works”).

The Second and Ninth Circuit Courts of Appeal have long recognized as

historical fact that, under the 1909 Act, the registration and deposit of a preexisting

common law work meant that a common law copyright “received” federal protection—

not that the deposit created a new work or altered the scope of an existing common

law copyright. Roy Export Estab. v. Columbia Broadcasting, 672 F.2d 1095, 1101 (2d

Cir. 1982) (stating that under the 1909 Act, “[s]tate law protection begins with a

work’s creation,” and continues until owner “secures federal protection”); La Cienega

Music Co. v. ZZ Top, 53 F.3d 950, 952-53 (9th Cir. 1995) 3 (stating that “an

unpublished work was protected by state common law copyright from the moment of

its creation until it was either published or until it received protection under the

federal copyright scheme” [emphasis added)); ABKCO Music, Inc. v. LaVere, 217 F.3d

3 preempted by Act of Nov. 13, 1997, Pub. L. No. 105-80, § 11, 111 Stat. 1529, 1534
(codified as amended at 17 U.S.C. § 303(b) (2000)).
 14

684, 688 (9th Cir. 2000) (accord); Societe Civile Succession Guino v. Renoir, S49 F .3d

1182, 1185 (9th Cir. 2008) (accord); Cosmetic Ideas, Inc. v. IAC/lnteractivecorp., 606

F.3d 612, 618 (9th Cir. 2010) (accord). Justice Holmes recognized in his 1908

concurrence in White-Smith that: “A musical composition is a rational collocation of

sounds apart from concepts, reduced to a tangible expression...” White-Smith, 209

US at 18 (Holmes, J.) (concurring) (emphasis added). His opinion said nothing about

sheet music.

It is key to realize that the 1909 Act does not address the creation of copyright

or its scope; this omission was deliberate and not some egregious oversight. It was

understood that copyright creation and its scope was addressed by the common law.

The 1909 Act instead addressed how to obtain federal protections (i.e., publication or

registration) and the rights available to the holders of existing copyrights registered

with the federal government (e.g., granting exclusive right to make copies). This was

the dual scheme that the 1976 legislative history recognized. See HR Rep. No.94-

1476, at p.129-31 (1976).

The Ninth Circuit, unfortunately, did not realize that the 1909 Act was

deliberately silent on how copyright is created. The Ninth Circuit therefore went

searching for an answer in the text of the 1909 Act that was not present. When the

Ninth Circuit erroneously claims that “Congress did not provide that copyrighted

works could be anything other than sheet music or, for an unpublished work, the

musical composition transcribed in the deposit copy” it incorrectly assumed that the

1909 Act meant to define how a copyright could be created. (App. 17). The Act, when
 15

placed in its proper historical context, obviously had no such intent. When the en banc

opinion postures that the “statute is clear and unambiguous” this is mere rhetorical

roughage unmoored from the Act’s purpose and limitations. (App. 21). These errors

by the en banc opinion completely undercut the entire rationale for its holding that

unpublished and published works could only exist as sheet music.

Needless to say, the scope of the already created and protected common law

work did not change or shrink when registered and deposited with the federal

government, as implied by the en banc opinion’s holding. The drafters of the 1909

Act even cautioned that the Act should not in any way be read as “abrogating”

common law copyright protection. 1909 Act, § 2.

In 106 years no court has ever held that a deposit lead sheet defined the scope

of copyright, and a deposit was never used by a single court or in a single trial

as the basis for the substantial similarity comparison. If a sheet music deposit

in fact controlled the substantial similarity comparison, then the Ninth Circuit and

Defendants should have identified a single court in over a century that applied it as

such. Again, it was settled law for a century that the deposit was not substantive, did

not control the substantial similarity comparison, and instead was jurisdictional and

archival.

The Ninth Circuit’s opinion almost entirely ignores the dual system under the

1909 Act, and fails to give any significance to the fact that works were plainly

protected as created. It has needlessly disturbed a settled matter, creating an issue

of first impression for this Court.

 16

b. The Purpose of the Deposit Lead Sheet was a Technical, Non-

substantive Formality, Which has Been Uniformly Recognized as
Jurisdictional and Archival

Contrary to the Ninth’s Circuit’s opinion, the deposit did not define the scope

of copyright. However, that beggars the question, what was the purpose of the deposit

requirement? After all, the deposit requirement does require that a “complete” copy

of the work be submitted to the Copyright Office.

There are two questions that must be answered: (1) why was the form of the

deposit in paper, and (2) if the deposit did not substantively define the copyright,

what was its purpose?

First, the simple reason that a paper sheet music deposit was required for

unpublished works is because it was convenient in 1909 and accepting piano rolls

(huge cylinders) would have been absurdly impracticable and unthinkable. This,

however, as this petition explains, does not lead to the conclusion that only paper

compositions had copyright.

Second, the purpose of the deposit formality is jurisdictional and archival, as

almost all available case law and authority note. No case before 2015 ever considered

the deposit formality to be substantive, and it was instead analyzed as jurisdictional

and/or a prerequisite to suit. See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d

477, 486–87 (9th Cir. 2000) (stating that inaccuracies in the deposit copy did not

divest federal court of subject matter jurisdiction if there was no fraud or prejudice);

La Cienega, 53 F.3d at 952-53 (stating that works obtained federal protection “by

complying with the requirements of the 1909 Act”).

 17

The deposit, of course, also had an archival purpose (to keep a record of the

work) and to help identify the copyright. (App. 19-21). It no doubt should be as

complete as possible. However, these tangential purposes do not mean that the

deposit governs the scope of a work under the 1909 Act, any more than a deposit

governs the scope of protection of a work under the 1976 Act. Under both copyright

Acts works are protected as created—the entire of purpose of copyright as explained

by Justice Holmes—not as deposited. See, e.g., 17 U.S.C. § 102.

The only authority which contradicts the conclusion that a deposit is a

nonsubstantive formality is a Copyright Office compendium from 1967 which states

that a registrant only has copyright as identified in the deposit. (App. 19-21). The

compendium, however, does not have force of law and is more importantly wrong as

explained throughout this petition. Works are protected as created by the common

law. Further illustrating that the Copyright Office has the wrong of it, the current

compendium still claims that under the 1976 Act the deposit governs the scope of

protected expression. See U.S. Copyright Office, Compendium of U.S. Copyright

Office Practices. § 504.2 (3d ed. 2017). Yet, it is universally recognized that a 1976

Act work is protected as it is created when fixed in a tangible medium under section

102, not as deposited. 17 U.S.C. § 102; (App. 103). The copyright office’s compendiums

are wrong (even today), ignore the importance of fixation under both acts, and do not

cite any authority to support their interpretation.

 18

c. The Full Composition of “Taurus” was Fixed in a Tangible

Medium, a Recording, which was Copied by Defendants who
Never Saw the Deposit Lead Sheet

Randy Craig Wolfe composed “Taurus” in 1966 and it was fixed at that time in

recordings. (App. 111). At the time of its fixation it gained common law copyright

protection. Like most composers who composed works under the 1909 Act, Randy

Wolfe did not know how to read or create sheet music.

Thus, when Wolfe and his band signed a record deal, the publisher hired

someone named “B. Hansen” to transcribe an outline of the song for the registration

deposit requirement. (App. 122-23). This deposit sheet music is not an independent

work of art and it was not created by the author Randy Wolfe. Id. It is extremely

incomplete and inaccurate as compared to the full composition of “Taurus.” See, e.g.,

Opening Br., at 34, Reply Br., at 25-27, 31-36, Skidmore v. Led Zeppelin, (No. 16-

56057) (experts explaining why the deposit is inaccurate and unfaithful to the full

composition of “Taurus,” and that the full composition is strikingly similar to

“Stairway to Heaven”).

Defendants never saw or heard the deposit of “Taurus,” and defendant Page

has admitted to owning the full composition of “Taurus” as embodied on Spirit’s

album (the composition Wolfe’s publishers intended to copyright), which a jury found

Page had access to before he created “Stairway to Heaven.” (App. 12). This

composition of “Taurus” that Page had access too is the protected essence of “Taurus,”

as conceived by Justice Holmes. This gives rise to the question: how can the

substantiality similar comparison be grounded on sheet music that Page never had

access to and could not read?

 19

d. The Three Boys Music Prejudice Analysis Should be Applied to

the Deposit Copy If the Deposit Governs the Scope of Protected
Copyright; This is a Matter of First Impression

Three Boys Music holds that when a registration or deposit is inaccurate, and

there is no fraud and prejudice to the Defendants, the deposit can be disregarded in

favor of the full composition. Three Boys Music, 212 F.3d at 486–87 (“Although the

1909 Copyright Act requires the owner to deposit a ‘complete copy’ of the work with

the copyright office, our definition of a ‘complete copy’ is broad and deferential.”); see

also Copperweld Corp. v. Independence Tube Corp., 467 US 752, 762-63 (1984)

(disapproving of legal doctrine that “‘makes but an artificial distinction’ at the

expense of substance”).

In Three Boys Music, despite arguments by the defense that the deposit was

incomplete, the Court found that there was no fraud or prejudice to the Defendants.

The Court then approved a substantial similarity comparison using the full

composition of the underlying song, as fixed in a recording, that the defendant had

access to. Three Boys Music, 212 F.3d at 486–87.

Plaintiff has repeatedly asked the courts to apply this standard to this case,

and instead use the composition in the “Taurus” recording Page owned, because the

“Taurus” deposit is very inaccurate. See, e.g., Opening Br., at 34, Reply Br., at 25-27,

31-36, Skidmore v. Led Zeppelin, (No. 16-56057) (experts explaining why the deposit

is inaccurate and unfaithful to the full composition of “Taurus,” and that the full

composition is strikingly similar to “Stairway to Heaven”).

However, this argument has not been addressed by any court. Instead it has

been conclusorily dismissed, with the courts noting that Three Boys Music prejudice
 20

analysis addressed the deposit requirement as jurisdictional not substantive. Indeed,

the district court applied the Three Boys Prejudice analysis jurisdictionally and found

there was no prejudice to Defendants. (App. 123).

However, the argument made by Plaintiff was that, regardless of whether the

deposit was considered jurisdictional or substantive, the prejudice analysis should

nevertheless be applied. Restated, the Courts have never explained why the prejudice

analysis does not apply if the deposit controls the scope of a song’s composition. A

Court of Appeals’ failure to address a dispositive issue on appeal is grounds for

reversal. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

As explained below, if the deposit is confirmed to control the scope of a 1909

Act musical work, most songs composed before 1976 are going to lose protection and

enter the public domain. By granting this petition, and holding that the prejudice

analysis should be applied where the deposit is inaccurate, this Court could entirely

avoid a contentious debate on the purpose of the deposit requirement under the

various copyright Acts, while ameliorating the far reaching consequences such

interpretations will have.

e. The Court should Grant this Petition because If the Deposit

Governs the Scope of Copyright, there will be Extensive Damage
to Creator’s Rights and Copyright Law

Should the deposit be construed as strictly controlling the scope of copyright,

it will fundamentally damage copyright law under the 1909 Act on every level.

First, the Ninth’s holding will dramatically divest hundreds of thousands of

1909 Act copyright owners of ownership in their works, destroying a national

 21

uniformity on the issue that has lasted 100 plus years. This divestation is already

happening, see Sheeran, No. 17 Civ. 5221, and will only accelerate as time goes on.

The Ninth Circuit has issued similar decisions before, upending settled law,

and resulting in national condemnation. When the Ninth Circuit reflected on the La

Cienega decision, in ABKCO, it recognized that it had improperly “took that settled

law [of the last 100 years] and cast it on its head, threatening to thrust into the public

domain hundreds of thousands of musical works which presently enjoy copyright

protection.” See ABKCO Music, Inc. v. LaVere, 217 F. 3d 684, 690-91 (quoting 143

Cong. Rec. H9882 (1997)). Incredibly, it has heedlessly done the same thing here.

Almost all musical compositions composed and registered under the 1909 Act

were composed not on sheet music, but on instruments and recordings. Opening Br.

36, 43-44, Skidmore v. Led Zeppelin, (No. 16-56057). The sheet music deposits were

almost uniformly inaccurate and incomplete lead sheets. This includes “Taurus,” and

“Stairway to Heaven” of which only 400 notes of 11,000 were included in the deposit.

Id. It would have cost thousands of dollars to fully transcribe just one song, something

that no contemplated or practiced. If the deposit controls the scope of protection in a

song, then 1909 Act songs will be nothing more than incomplete outlines on dusty

paper that no one has ever seen.

In particular, this will most heavily impact historically disenfranchised

communities (black blues artists, for example, which Led Zeppelin heavily “borrowed”

from and sometimes had to settle with) where the composition of music was not done

on paper, raising serious equal protection concerns. See U.S. Const., Amdt. 5; US v.
 22

Windsor, 133 S. Ct. 2675, 2693 (2013); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693,

98 L.Ed. 884 (1954).

Second, this ruling will render the substantial similarity comparison under

the 1909 Act an artificial and pointless exercise. The elements of a copyright claims

are (1) ownership, (2) access, and (3) substantial similarity. The point of a copyright

claim, as Justice Holmes observed in his White-Smith concurrence, is to prove that

the defendant had access to the plaintiff’s work at issue, and then prove that the

defendant used the access to that specific work to impermissibly copy the work at

issue. "

The Ninth Circuit’s en banc opinion nonsensically holds that access and

copying are no longer related, effectively destroying the purpose of a copyright claim.

Restated, the copyright comparison now compares the allegedly infringing work to a

sheet music outline the infringer never saw or heard. This renders the comparison

nonsensical.

Third, under the Ninth Circuit’s ruling, the actual recordings of Plaintiff’s

composition that the Defendants accessed/heard and copied are now inadmissible is

music copyright trials. (App. 22, 111). This alone is simply flabbergasting, especially

as for 106 years there was never any such restriction.

Fourth, fundamental aspects of song composition which have always been

included in the 1909 Act substantial similarity analysis are now permanently

excluded. See Three Boys Music, 212 F.3d at 485–86 (recognizing lyric, rhythm, pitch,

shifted cadence, instrumental figures, verse/chorus relationship, and fade ending as

 23

compositional elements); Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004) (stating

that “commentators have opined that timbre, tone, spatial organization, consonance,

dissonance, accents, note choice, combinations, interplay of instruments, basslines,

and new technological sounds can all be elements of a musical composition”). Many

of these common elements are usually never placed on inherently bare paper sheet

music.

The fundamental reality is that if the Ninth Circuit’s en banc opinion is left

standing, the 1909 Act similarity comparison will no longer be grounded in copyright

principles. Justice Holmes would be baffled and chagrined to see his 1908

observations about the fundamental nature of copyright law, which were

incorporated into the 1909 Act, so cavalierly cast aside.

II. The Court Should Grant this Petition because the Ninth Circuit En
Banc Opinion Fundamentally Alters and Challenges Binding
Precedent on the Extrinsic Test, Namely Originality and Selection
and Arrangement

In addition to the deposit copy matter, Plaintiff’s petition takes issue with

Ninth Circuit’s indefensible holding on the jury instructions given on the extrinsic

test. The instructions concerned two topics central to the comparison, originality and

selection and arrangement. As opposed to the deposit copy issue addressed in Section

I which concerns the 1909 Act, the en banc court’s errors in this section affect the

substantial similarity analysis for all future cases under both the 1909 and 1976

Acts.

The Ninth Circuit’s en banc opinion has, without any regard for stare decisis,

fundamentally altered these basic copyright concepts, directly bringing itself into
 24

conflict with not only this Court’s Feist decision, but every other circuit, on how to

conduct the substantial similarity test under the 1909 and 1976 Acts.

The need for the Supreme Court to address and reverse the en banc opinion is

significantly heightened by the fact that the Ninth Circuit handles a disproportionate

number of copyright cases as the “Hollywood Circuit,” meaning that allowing the

Ninth Circuit opinion to stand will result in a huge percentage of copyright cases

being decided under a plainly erroneous rubric.

a. The Ninth Circuit has Contradicted this Court’s Binding

Precedent by Effectively Redefining Originality in a Way that
Contradicts this Court’s Feist Decision

The Ninth Circuit’s en banc opinion has redefined originality in a way which

fundamentally contradicts this court’s decision in Feist Publ’ns, and the essence of

copyright law.

This Court holds that originality is the foundation of copyright law:

The sine qua non of copyright is originality.... Originality does

not signify novelty; a work may be original even though it
closely resembles other works so long as the similarity is
fortuitous, not the result of copying.

Feist Publ’ns, 499 U.S. at 348 (emphasis added). The Feist court stressed that only

“a narrow category of works in which the creative spark is utterly lacking or so trivial

as to be virtually nonexistent” are not afforded protection. It is key that the factfinder

understand that a work need not be novel to be original, only that it not be copied.

See Swirsky, 376 F.3d at 851 (stating that “originality means little more than a

prohibition of actual copying”).

 25

The en banc opinion turns this simple, binding definition on its head. The en

banc court, over objection, endorses the district court’s instruction on originality

which was in fact a custom defense instruction:

“An original work may include or incorporate elements taken

from prior works or works from the public domain. However, any
elements from prior works or the public domain are not
considered original parts and not protected by copyright.”

(App. 92) (emphasis added). This instruction inexplicably removed the language from

Feist in the Ninth Circuit Model Instruction 17.13 stating that a work did not need

to be novel to be original, and instead adding language not contained in any definition

of originality, holding that if an element was not novel in view of the prior art it was

not original. (App. 92). Whatever this instruction describes, it is not originality as

defined by Feist and applied by every other circuit. See, e.g., Christian Louboutin v.

Yves Saint Laurent America, 696 F. 3d 206, 223 n20 (2d Cir. 2012); Home Legend,

LLC v. Mannington Mills, Inc., 784 F. 3d 1404, 1409 (11th Cir. 2015); Oracle America,

Inc. v. Google Inc., 750 F. 3d 1339, 1354 (Fed. Cir. 2014); Society of Holy

Transfiguration v. Gregory, 689 F. 3d 29, 48 - Court of Appeals, 1st Circuit 2012;

Kelley v. Chicago Park Dist., 635 F. 3d 290, 302-03 (7th Cir. 2011) (holding that

author’s use of geometric shapes was original and protectable); ATC Distribution

Group, Inc. v. Whatever It Takes Transmissions, 402 F. 3d 700, 710 (6th Cir. 2005).

The jury was unmistakably left with the impression that novelty is a required

element of copyright and that any element that ever appeared in the prior art was

legally not original. (App. 94). Defendants in fact argued at trial that elements of

Plaintiff’s works allegedly appeared in several pieces of esoteric prior art, but had no
 26

proof at all Randy Wolfe had heard or copied any of this prior art. (App. 13). Thus,

Defendants instead advocated for and obtained a legally erroneous jury instruction

which incorrectly told the jury that the mere fact that an element appeared in the

prior art meant it was unoriginal and not protectable.

The en banc opinion’s only justification for the omission of the novelty line, and

addition of the prejudicial prior art line, is to vaguely and conclusorily claim that

other inapplicable instructions “embace[] this concept.” (App. 39). However, if

anything the error was compounded not corrected by the other instructions the court

chose.

For instance, the effect of this error was severely compounded by another

custom defense instruction, also objected to, which baselessly told the jury that the

exact musical elements at issue in the case were not protectable such as “such as

descending chromatic scales, arpeggios or short sequences of three notes.” (App. 33).

The en banc opinion misleadingly affirmed, claiming that common and short elements

and sequences are never able to be copyrighted. Id.

Of course, this is incorrect, because if a short phrase or common element is

used in a creative way it can achieve protection. Swirsky, 376 F. 3d. at 849; Oracle,

750 F. 3d at 1362 (“The court failed to recognize, however, that the relevant question

for copyrightability purposes is not whether the work at issue contains short phrases

— as literary works often do — but, rather, whether those phrases are creative. See

Soc'y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 52 (1st Cir.

2012) (noting that "not all short phrases will automatically be deemed
 27

uncopyrightable"); see also 1 Melville B. Nimmer & David Nimmer, Nimmer on

Copyright § 2.01[B] (2013) (‘[E]ven a short phrase may command copyright protection

if it exhibits sufficient creativity.’).”).

The unrebutted expert testimony at trial was that “Taurus” contained the use

of a descending chromatic scale, copied in “Stairway to Heaven,” which was used in a

unique way that does not appear in any prior art—especially when combined with

the other elements at issue. (App. 93-94). The panel opinion notes that the errors

“misleadingly suggest that public domain elements are not copyrightable even when”

they are used “in a creative, original way.” Id.

In conjunction, these two erroneous instructions bluntly (but incorrectly) told

the jury that most of Plaintiff’s song was not original, not protectable, and

“undermined the heart of Skidmore’s argument.” (App. 96.).

It is important not to lose the forest for the trees: the introduction to “Stairway

to Heaven” is the epitome of an iconic musical phrase, and has been jealously guarded

by Led Zeppelin for decades. The notion that this expression is unprotectable is

absurd.

The en banc’s endorsement of the Defendants’ efforts to redefine originality are

a stark warning about the future of copyright law, especially after the jury’s verdict

was vacated in the Gray v. Perry “Dark Horse” trial by repeated citation to the most

problematic aspects of the en banc opinion. Gray v. Katy Perry, 2:15-cv-05642 (C.D.

Cal. March 16, 2020). This redefinition of originality will greatly enhance Defendants’

ability to infringe music and defend lawsuits.

 28

Given the consequences of inaction, and that the en banc opinion has violated

binding precedent in this Court and stands in direct opposition to the other circuit

courts which faithfully apply Feist, this Court should grant the petition on this issue

of first impression.

b. The Ninth Circuit has Fundamentally Contradicted this

Court’s Binding Precedent by Effectively Eliminating the
Selection and Arrangement Instruction from the Extrinsic Test

This Court observed in Feist that selections and arrangements of otherwise

unprotectable elements are afforded copyright protection as long as they have a

modicum of creativity and originality. 499 US at 348-51. Along with originality, it is

foundational to copyright that unprotectable elements can be protected in

combination.

At some level, all music is a combination of unprotectable elements: individual

notes. The notes gain protection when they are combined and arranged in ways which

have a modicum of originality. Swirsky, 376 F.3d at 849. Up until now, this principle

had been faithfully applied in the Ninth Circuit. See, e.g., Swirsky, 376 F.3d at 849.

Given the infinite forms that artistic expression take, such as combinations of musical

elements, these compilations are afforded broad, not thin, protection. McCulloch v.

Albert E. Price, Inc., 823 F. 2d 316, 321 (9th Cir. 1987) (stating that “Works that are

not factual receive much broader protection under the copyright laws because of the

endless variations of expression available to the artist” [emphasis added]).

As the dissent explains, Plaintiffs’ experts painstakingly outlined a theory at

trial that “Taurus” is protectable because it uses five elements, in combination and

played simultaneously over top of each other, to create a unique and memorable
 29

composition which was original and copied in “Stairway to Heaven”. 4 (App. 59-60, 65-

66). It was a “paradigmatic” selection and arrangement theory. (App. 67).

Yet, the district court deliberately refused to give a selection and arrangement

instruction, despite both sides asking for one. (App. 87-88). The effect was that the

jury was told that Plaintiff’s individual elements were unprotectable, and then not

informed that they could be protectable in combination. Plaintiff could not even close

the case referencing the jury instruction he needed most because it had not been

given. The correctness of the dissent’s conclusions that the district court’s rulings

constitute “plain error” and “cut out the heart of Skidmore’s case” is beyond

peradventure. (App. 65) (emphasis added).

Upon en banc rehearing, the opinion of the court affirmed the failure to give a

selection and arrangement instruction on several puzzling grounds. 5 The most

problematic is that it vaguely held that the failure to give a selection and

arrangement argument was immaterial because other, unrelated, jury instructions

somehow cover this concept. (App. 48). Yet the instructions referred to do not

anywhere explain the basic principle that unprotectable elements can be protected as

combination. The dissent recognizes that the Ninth’s opinion baselessly sanctions the

4 Note that this analysis only applies to the deposit copy and that if the full
composition of “Taurus” as fixed in recordings is held to be the appropriate scope of
the “Taurus” copyright, a new analysis will need to be conducted.
5 For instance, even though the district court specifically stated that it would not

allow any oral objections about instructions, the en banc court found that plaintiff
had somehow waived the claim of error. The dissent notes that this is not remotely
accurate, and that in any case the failure to give the instruction was plain error. (App.
69-70).
 30

omission of this this instruction and “weakens copyright protection for musicians by

robbing them of the ability to protect a unique way of combining musical

elements.” (App. 66, 73). The endorsement of this omission by the en banc opinion

directly contradicts Feist, and all precedent from the circuit courts. It will widely be

used by industry defendants to further erode the concept of selection and

arrangement.

The en banc opinion also made the risible claim that Plaintiff had not

presented a selection and arrangement theory because his experts testified that the

elements were protected in “combination” not as an “arrangement,” and that he had

identified merely random “scattered similarities.” (App. 67). First, this is illusory

semantics; the language used mirrors the most recent and dispositive Ninth Circuit

case, Swirsky, which faithfully applied Feist. See Swirsky, 376 F.3d at 849 (stating

that Ninth Circuit had upheld “a jury finding of substantial similarity based on the

combination of five otherwise unprotectable elements” [emphasis added]); see also

Oracle America, Inc. v. Google Inc., 750 F. 3d 1339, 1362 (Fed. Cir. 2014). Petitioner

has never seen a court rule against a litigant for using the court’s own language to

describe a legal concept. The dissent disapproved of the majority’s word games (App.

61, 66-67). Second, the opinion of the en banc court is musically illiterate as it

concerns its claim that Plaintiff’s expert picked random scattered similarities. The

claimed protected combination of elements were all closely related to each other and

were played over top of each other in four bars of music, making it impossible that

they were randomly scattered. (App. 67).

 31

In short, Skidmore fully endorses the dissent’s discussion of selection and

arrangement, which correctly and rather harshly observes “The majority’s

characterization of Skidmore’s case is belied by both the trial record and by common

sense.” (App. 66, 73) (emphasis added). The dissent’s conclusions that the district

court’s rulings constitute “plain error” and “cut out the heart of Skidmore’s case”

are correct. (App. 65) (emphasis added). The panel opinion likewise cogently explains

why the district court prejudicially erred. (App. 87-91).

c. The Dire Consequences of the En Banc Opinion’s Holdings

were Swift and Widespread, and will Continue to Worsen
Unless this Court Grants Review

Defendants have long sought to use originality in a way it was never designed

for, to create a novelty requirement for copyright protection—exactly as the en banc

opinion did. Defendants intend to claim that all works, at some level, are composed

of elements already in the prior art for the purpose of claiming that plaintiffs do not

own any of the elements in their works because they are not novel—as Defendants

argued in this case.

Defendants have also long sought to eliminate and limit the applicability of the

selection and arrangement concept. If Defendants can convince the courts that

selection and arrangement is illegitimate and does not even have to be given as an

instruction—after having heighted and obfuscated the bar for originality and

protection of individual elements—then they practically cannot lose a case.

In effect, the Hollywood Circuit en banc opinion gives the industry defendants

exactly what they have always wanted. As a result, within days of opinion being filed,

a major copyright verdict against Katy Perry was vacated by a Central District of
 32

California judge citing to the en banc opinion’s erroneous holdings on originality and

selection and arrangement. Gray v. Katy Perry, 2:15-cv-05642 (C.D. Cal. March 16,

2020).

If there was any doubt about what effect this precedent will have, consider the

excitement in this analysis from industry defense attorneys who enthusiastically

cheer the redefinition of originality and selection and arrangement because it has

already “turned the tide of music copyright infringement law toward defendants.” See

Alexander Kaplan, Sandra Crawshaw-Sparks, Simona Weil, Led Zeppelin Ruling is

Already Affecting Copyright Litigation, PROSKAUER (April 3, 2020, available at

https://www.proskauer.com/uploads/led-zeppelin-ruling-is-already-affecting-

copyright-litigation. They go on to eagerly observe that the limitation and erosion of

the selection and arrangement concept is “notable and undoubtedly will be relied on

by future similarly situated music copyright defendants.” Id. Their jubilant attitude

is understandable, as the Ninth Circuit just made their jobs much easier.

However, originality is a constitutional requirement and selection and

arrangement is a foundational copyright concept; they cannot be changed at will for

Defendants’ to gain a litigation advantage.

This Court should grant the petition. Selection and arrangement is a

cornerstone of copyright law, and if it is eliminated copyright will be but a shadow of

its former self.

 33

d. The En Banc Court Violated Its Own Rules in Granting

Rehearing En Banc, Causing Enormous Prejudice to Plaintiff

This Court has recently expressed concern about the Ninth Circuit ignoring

basic ground rules about addressing only those issues actually before the court. US

v. Sineneng-Smith, 140 S. Ct. 1575, 590 US __ - (2020).

After the panel opinion, Plaintiff-Petitioner filed for limited rehearing en banc

on the deposit copy issue. See, e.g., Pet for Rhr., Skidmore v. Led Zeppelin, (No. 16-

56057) The Defendants also filed for rehearing en banc on issues including on

originality, selection and arrangement, and thin copyright.

Almost all of the Defendants’ issues were not even remotely suitable for en

banc review under Ninth Circuit Rule 35-1 (stating circuit split and national

uniformity reasons for en banc review); see also FRAP 35. In contrast the deposit

holding is one of first impression which does implicate national uniformity concerns,

as well as conflicts with 106 years of national precedent.

Accordingly, the circuit court only ordered Defendants to respond to Plaintiff’s

petition. A petition for rehearing cannot be granted unless the other side is given a

chance to respond. Ninth Circuit Rule 35-2. Plaintiff was never ordered to respond to

the issues in Defendants’ petition.

The Court then vacated the panel opinion and granted rehearing. However,

the en banc opinion focused not on the deposit, but instead on fundamentally

redefining originality and selection and arrangement—without ever having given

Plaintiff the opportunity to oppose a rehearing on these bases.

 34

Given the plainly activist role that the en banc court took towards reshaping

and redefining settled copyright law, it must be inferred that this bait and switch

about what petition the court was actually planning to address was deliberate.

The failure to give Petitioner the Rule 35-2 opportunity to respond was wildly

prejudicial. As a result, Petitioner was blindsided when the Court addressed these

jury instructions. In addition, as the dissent notes, the en banc court made factually

baseless claims about the diligence of counsel and experts at trial (regarding waiver

issues and expert testimony on the selection and arrangement instruction). Skidmore

was given no notice that these issues would be addressed on rehearing, and no a

chance to respond, all of which smacks of gamesmanship.

The consideration of the issues in Defendants’ petition, without giving Plaintiff

the chance to respond, violates the letter and spirit of Circuit Rule 35-2, FRAP 35,

and was an abuse of discretion. Furthermore, these issues did not meet the rehearing

standard. Id. The activist push by the en banc court to reshape long established

copyright standards evidences a desire to improperly shape the case, avoid full

briefing, and decide issues not before the en banc court. This was all reversible error.

CONCLUSION

For the reasons set forth in this Petition, Michael Skidmore respectfully

requests this Honorable Court grant his Petition for a Writ of Certiorari.
 35

Respectfully submitted,

__/s/ AJ Fluehr__________________________
Alfred J. (AJ) Fluehr, Esquire
Counsel of Record
FRANCIS ALEXANDER LLC
280 N. Providence Road | Suite 1
Media, PA 19063
(215) 341-1063
aj@francisalexander.com

Attorney for Petitioner,

Michael Skidmore, Trustee for the Randy
Craig Wolfe Trust