No Stairway (Infringement) and the Importance of Shared Design Tools in Innovation
Led Zeppelin just won a major copyright case defending against infringement claims from the estate of Randy California—songwriter for the band Spirit. At first listen, the opening guitar part of Zeppelin’s Stairway to Heaven does sound a lot like California’s guitar part in the middle of Taurus. But as I explain in a longer blog post, what is copied is a common motif in song composition, effectively a design tool.
But first, consider that a song is a combination of different elements. There may be vocals, guitars, bass, drums, etc. When we say there is copyright protection for that song, we don’t mean that every one of these parts, or every component of those parts, is necessarily protectable. At the same time, while it’s tempting to focus on obvious parts like lead vocals, those are not the only protectable part either. These other instrumental parts can be protectable too.
Where these parts are copies of other existing parts, then subsequent further copying by someone else is not infringement. Or, where the distinctive thing copied is only the core element shared by many similar earlier written parts, there is no infringement. No one can claim copyright to these things because they have been around for a long time and are now “generic” parts or common design tools, respectively.
This use of design tools should resonate with all creators and innovators, including those across tech fields. For example, coders use modular concepts that are then implemented in specific code: sometimes directly copied from earlier code, sometimes written differently.
The use of intellectual property (IP) to claim these tools can be problematic. A lot depends on exactly how abstract the tool is that is being claimed. For those who follow IP law, this is the tension behind the “abstraction test” in copyright and the recent Supreme Court software patent decision in Alice Corp. v. CLS Bank. But “abstract” is not binary—there are degrees of abstractness. The more abstract, the more problematic it is if we grant exclusive IP rights to someone. But many things at “mid” levels of abstraction can be appropriate for protection.
Delving into Stairway and Taurus, let’s begin with the abstraction of “chord progressions.” Many people call the guitar parts at issue here chord progressions, but I think that is misleading. To me, a chord progression is an abstract music design tool. There are countless variations on how one plays any standard progression, but overall they set the song in a certain mood. A “I IV V” progression (e.g., G C D) will generally be happy and upbeat. A “12 bar blues” progression will be, well, bluesy.
So what’s going on between Stairway and Taurus?
The two parts are both based on a descending line within a minor chord that gets your attention because it “breaks” a rule of Western music composition. Normally, Western composers write in keys or scales that alternate whole steps and half steps between notes. For example, when you play only the white keys on a piano you are playing a C major scale. But you are skipping the black keys which add in all the half steps possible. So if you play all white keys and black keys in sequence you are playing a “chromatic” scale. But it sounds weird and so most traditional Western compositions are based on major or minor scales with alternating whole/half steps.
Here I play the Taurus part twice, and then play only the descending line:
While it could be notated as a “chord progression,” from a practical guitarist’s perspective it is what I call a “pass though line”—a melodic line passing through or across a more limited number of chords. This is yet another design tool. Because of the way the guitar is played—one hand to fret across six strings—you have to think in terms of clustered patterns or “positions” to execute moving lines within or across chords. Thus what a theory-based composer would consider in the abstract to be separate chords for each arpeggio of this piece, we as practical guitarists need to design a mechanical playing approach that uses a limited number of chord positions.
On the guitar, each fret represents a half step. So you can see that this part drops by four half steps (chromatically) for five total discrete notes in the line. While this motif apparently arose as early as the 1600s, the use of chromatic sequences really took off much later in jazz, blues, rock, and other pop genres. You can also see that I keep playing the other notes of the beginning Am chord and only change notes on the fourth string of the guitar for much of this part. At the very end there is finally a chord change to a D.
Now look at the famous intro guitar part to Stairway to Heaven:
The part passes only the first three notes of the descending line through the Am, but then shifts to a D/F# chord (D with an F# root) for the fourth tone, and then to an Fmaj7 for the fifth discrete tone, ending with a G/B to an Am. Again, I play the full part twice, and then the pass through line on its own. Quite different after the first three notes.
Now look at the opening guitar part from The Beatles’ Michelle (1965) that predates both Taurus and Stairway:
We are in Fm now, working off only the top three strings of the guitar, but you can hear/see the descending line within the Fm, before resolving to a C at the end. Among other songs that predate Taurus, Michelle was used by Zeppelin’s defense attorney as a key example of this “common ancestor” motif in the trial.
Also look at Jim Croce’s Time in a Bottle, which is roughly contemporary with Stairway and Taurus:
We are in Dm now, and the part places the descending line in the middle of the Dm chord, not at the bottom of it. It also adds a fancy flourish of chords at the end. I didn’t play the descending line separately as you get the idea now.
Here’s an old video of Davey Graham playing a similar Am descending line that predates all of them:
So what does all this mean?
The first person who came up with this descending line might have gotten copyright protection for it under today’s standards, because it is more than merely a “building block” like a note or a chord that never gets protection. But that protection would have long ago expired. So the line is a common design tool available for all.
This doesn’t mean that every part using this line is unprotectable. What counts for copyright protection is the originality the composer adds to the line—the exact way they implement this design tool. Jimmy Page added counterpoint (the ascending line you hear on the high string of the guitar) as well as different chords. Someone who copies that entire exact part may infringe Zeppelin’s copyright. California didn’t add much. He played the line through until shifting to a final D. Nonetheless, if someone copied the entire exact Taurus part—all the way to the D—then maybe there could be infringement. McCartney, writing Michelle, and Croce in Time in a Bottle, add nice turn arounds at the end. Graham goes into the melody of Cry Me a River (this was a cover anyway).
So how do we figure out what design tools, be they pass through lines or lines of code, are appropriate for protection? That’s the subject of my book project, Method+ology and the Means of Innovation. It seeks to create a “science” of design tools and methods that could then be applied across any field to help think about how abstract a particular tool or method is, which in turn can help lawmakers and courts set good policy for where to draw the lines of IP protection.