Led Zeppelin is
used to lawyers. The recent flap over “Stairway to Heaven” with the estate of
Randy California is not the first allegation of copyright infringement against
the legendary band. Years ago, I heard an attorney speak who had been part of
Zeppelin’s defense team in a suit brought by John Lee Hooker. The lawyer
recounted how his hands were essentially tied, thanks to years of interviews
where Robert Plant and Jimmy Page openly talked about borrowing from old blues
songs.
Still, I could not shake the question, “Why now?” The answer
probably lies in a recent United States Supreme Court decision involving the
movie “Raging Bull,” Petrella v.
Metro-Goldwyn-Mayer, decided on May 19, 2014. The Court held that each
infringing act starts a new limitations period, although each infringement is
only actionable within three years of its occurrence. The Court allowed a suit
to continue that was filed in 2009, although the movie was originally released
in 1980, and the claimant’s copyright was renewed in 1991. If successful on the
merits, the claimant’s recovery would not include exploitation of the film
before 2006.
As a result, even before reaching the musical question of
infringement, the current suit against Led Zeppelin will no doubt be challenged
based on the time delay. Recent authority suggests, however, that the delay
will prohibit recovery for use of the song before 2011, but will not act as a
complete bar to the litigation.
Earlier this Spring, The
Beastie Boys settled a suit against toy maker GoldieBlox for use of the
song ”Girls” in a commercial. One of the interesting things here is that once dispute
arose, it was GlodieBlox who went on the
offensive, filing litigation in hopes of having its use declared to be a
permissible parody of the original song. The band counter-sued, alleging
infringement.
The concept of claiming parody as a “fair use” defense
traces back to Campbell v. Acuff-Rose
Music, an action based on 2 Live Crew’s version of the Roy Orbison classic,
“Pretty Woman.” According to the Supreme Court’s opinion, 2 Live Crew
originally intended to license the song from the publisher, Acuff-Rose, and to
properly credit the original songwriters. When the music publisher refused to
license the song, 2 Live Crew released it anyways. Approximately 250,000 unit
sales later, Acuff-Rose filed suit. (The Court never mentions the compulsory
license process.)
Once sued, 2 Live Crew changed tactics, and rather than
offer to license the song (and pay the statutory mechanical license rate), the
band argued that its version was a parody, constituting a “fair use” and making
it unnecessary to obtain the typical mechanical license. The United States
Supreme Court agreed, and held that the track could qualify as a protected
parody, despite the commercial nature of the 2 Live Crew release.
At first blush, the Goldieblox song seems to be a likely
candidate for fair use protection. Company representatives claimed that its
version of “Girls” made fun of the original Beastie Boys track, and its sexist
lyrics, by instead urging gender equality, especially in the fields of
technology, math, and science.
Because the case was
settled, we will never have a definitive judicial interpretation of the facts
and law. We do know, however, that the settlement required an apology from
GoldieBlox, and payment by Goldieblox to one or more charities (selected by The
Beastie Boys). Without more details, it’s impossible to know whether
Goldiebox’s settlement indicated a lack of confidence in its legal position; or,
if it was a simple recognition that it had made a colossal mistake in forging
ahead with the ad campaign without first securing a synchronization license
from the music publisher. With that much money at stake, assuming that you will
qualify as a parody strikes me as a pretty gutsy move.
The lessons learned? If someone has infringed your intellectual
property rights, and it’s been more than three years, your cause of action may
be limited, but not completely lost. But, if an infringing use qualifies as a
parody, it may be exempt from the licensing process. And, sue Led Zeppelin if
you have to, but you should probably leave The Beastie Boys alone.