Round two of the Led Zeppelin versus Spirit "Stairway to Heaven"copyright infringement trial began in San Francisco with members of an 11-judge federal appeals court panel expressing skepticism over whether a new jury trial is needed.
Attorneys for the estate of the late Randy Wolfe (a.k.a.Randy California) of Spirit want a second jury trial. Although the estate lost at the 2016 trial, that verdict was overturned on appeal due to what a three-judge panel unanimously agreed were flaws in the judge's instructions to the jury.
At yesterday's hearing, plaintiff's attorney Francis Malofiy reiterated his argument from the first trial that a jury should be allowed to hear the actual recording of Spirit's instrumental "Taurus," which Wolfe's estate claims Led Zeppelin stole to create the iconic intro to "Stairway to Heaven." In the original trial, the jury was only allowed to see a written "lead sheet," which Malofiy contends was a poor reproduction of what was actually played.
Judge Andrew D. Hurwitz addressed that yesterday when he told Malofiy, "You’ve got to get your sound recording in to win, don’t you? You lose the case unless you do. A hundred times out of a hundred."
But Malofiy noted that Zeppelin guitarist Jimmy Page had testified that he doesn't read music, so the case should not be decided on the basis of written sheet music. He also pointed out that Page had five albums by Spirit in his record collection, so he could not reasonably claim to have been unaware of the group or of "Taurus."
Led Zeppelin's lawyer countered that Malofiy had never pointed out that the transcription was poor in the original trial. The argument against using the sound recording was helped on Monday by a U.S. government attorney who said that the “Taurus” recording might be considered under more recent copyright legislation, but that this case falls under a 1909 law that recognizes only the sheet music.