Why the ‘Stairway to Heaven’ Lawsuit Could Ruin the Music Business…

The Music Business Will be Litigated?

There are only so many notes that can be assembled into a melody.

Actually, there are 12 of them in Western music.  That melody can only be combined with so many rhythms.  It’s a finite mathematical number, and simple math dictates that the same melodies and rhythms, and various combinations thereof, will keep recurring over time.

Just like they did repeatedly, over a period of centuries, for the exact melody and progression ultimately made famous by Led Zeppelin in ‘Stairway to Heaven’.

More precisely, the ‘Stairway’ melody has existed since the early 1600s, and maybe even earlier, just like the melodies and rhythms of so many other major pop songs of our era.  We have the old compositions as proof; Zeppelin basically took a public domain progression, and made it into a hit song.  So why hasn’t this inane lawsuit against Led Zeppelin been tossed already?  Why are we wasting money, time, and energy entertaining this ridiculous case?

Blame the lawyers, and blame the law, both of which could cripple creativity in the music industry if drastic modifications don’t occur.  It happened with the Marvin Gaye case, and is continuing with Zeppelin right now.  And all the while, lawyers are salivating over the prospects.  Because if Spirit somehow prevails against Page and Plant, brace yourself for an avalanche of copycat cases.  The music industry will have its own era of patent trolling, and become a living nightmare for creators.

Part of the problem is that the law sets too strict a bar for originality.  Turns out we’re not as original and brilliant as we think, and we’re protecting too much as a society while dramatically reducing the societal benefits.  Just look at what music really is, at its core.  There’s truth to the saying that there’s no such thing as a new idea, and most music is derivative of something else.  Or, at least borrows from millions of songs before it.

There wouldn’t be a Beethoven without Mozart.  Rock n’ Roll couldn’t exist without the Blues.  Rap needed Jazz and other earlier genres to sample.  There’s no such thing as an isolated musical genius or movement; everyone borrows (or steals) from someone else.

So why are we litigating against that very nature?

Transplant that process into the modern, tech-fueled music industry, and it’s completely inevitable that the same stuff will get created over and over again.  And it’s increasingly likely that two creators can be completely unaware of the other, yet create exactly the same thing (or at least something close).  No wonder we keep hearing from songwriters who are paranoid about accidentally copying something else, and facing legal ramifications for a simple mathematical accident.  This is not a friendly environment for creativity.

In that light, why do we insist on coddling ridiculous lawsuits like the one being lodged against Led Zeppelin, instead of quickly squashing them?  Lawsuits cost money, and frivolous cases waste public resources, disrupt jurors’ lives, and needlessly drain defendants (even if it just involves their time).

But smarmy lawyers can only stretch the law so far.  So why do we continue to have a copyright law that keeps creations protected for more than a century (and frequently, much longer)?  Is that helping anyone except a small group of litigious musicians, attorneys, and major corporations?

Of course it isn’t.  A pharmaceutical lab could easily spend millions developing a wonder cure for cancer, yet that cure could only be protected for twenty years.  That’s actually good for society: it eventually pushes helpful medicines into the generic sphere, and drives down the price for those in need.  It also ensures that the companies that invested upfront can protect their initial investment (otherwise they wouldn’t invent the medication in the first place).

So why does Warner Chappell Music get more than five times that level of protection, or far more?  Warner used over-bearing copyright to bully an entire society into paying for ‘Happy Birthday’.  But why was that even allowed in the first place?

Maybe it’s all Disney’s fault; a nest of special interests and lobbying that’s impossible to defeat.  But this is going to become a more serious question as the technology for both creating and distributing music continues evolve.

But it’s also a huge and growing problem, right now, and if Led Zeppelin loses their lawsuit against Spirit, the music industry will start to change in a lot of ways.  We’ll start witnessing an avalanche of frivolous lawsuits, based on frivolous precedents, with major legends like Zeppelin spending their sunset years in drab courtrooms while hemorrhaging their estates.

Part of the problem is technology, and a legal system that refuses to catch up.  It’s never been easier to release a song, and the tools to make music are better than ever.  There are tens of millions of songs released every year; stuff is going to sound strikingly similar.  It’s been true throughout the history of music, and it’s never been more relevant than right now.

Sure, sometimes stuff is blatantly copied: note-for-note, word-for-word, rhythm-for-rhythm.  But those cases are obvious.  The rest is called ‘music,’ and the law should respect the natural way it progresses and grows.

So if you want a music industry drained of creativity, riddled with ‘patent-trolling’ attorneys, and rife with copy-safe karaoke knock-offs that are litigation-proof, then keep supporting the system as it is.  But if you really want this business to grow, let’s give up ridiculously over-extended copyright protections while slapping down frivolous filings.

It’s about helping the broader business, not a small group of leaching lawyers and predatory copyright owners.


(Supreme Court statue image by Matt Wade (CC by 2.0)).



5 Responses

  1. RIAA

    So why does Warner Chappell Music get more than five times that level of protection, or far more? Warner used over-bearing copyright to bully an entire society into paying for ‘Happy Birthday’. But why was that even allowed in the first place?

    because of america’s world class copyright system that every citizen adores!

  2. Anonymous

    “There are only so many notes that can be assembled into a melody. Actually, there are 12 of them in Western music. That melody can only be combined with so many rhythms.”

    And here’s the worst part: Only VERY few of the available note sequences sound ‘good’.

  3. Anonymous

    “Sure, sometimes stuff is blatantly copied: note-for-note, word-for-word, rhythm-for-rhythm. But those cases are obvious.”

    It’s not that simple. Take Beach Boys’ 1963 song Surfin’ U.S.A: Every time somebody brings it up, the discussion goes on for hours. Nobody’s ever going to agree. I’m not even sure what I think myself.

    But a reduction of the protection period might work. I think you mentioned 20 years somewhere. I’d be fine with that, and I think most songwriters would, too.

    The current situation is really weird: Chuck Berry’s family gets every cent from Surfin’ U.S.A. until at least 2086.

    • Anonymous

      …perhaps 30 years would be better.

      We have copyright laws because we want to protect art and make it as fantastic as it can possibly be, and I’m not sure we need new ‘versions’ of songs, literature or movies from the past 20 years. Britney Spears’ first hits are almost 20 now for instance, and things haven’t changed much since then. Songs and novels from the mid-80s, on the other hand, certainly feel like they’re from a different era, so it could make sense to use melodic or literary material from that period in new ways. It might add new value.

  4. Mountain Man

    Oh, come now, we all know this Led Zeppelin lawsuit has nothing to do with copyright at all. This lawsuit is simply about money, period. If there was no money involved here the courtroom would be empty. That is the shame of a lawsuit like this is that it trivializes real copyright infringements and lines the pockets of those who have great command of “law”, but apparently no command of how music theory works.


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