Copyright Law: “The Scope of the Copyright is Limited by the Deposit Copy”

By John DiGiacomo

A recent decision from the Ninth Circuit Court of Appeals is notable for being an excellent exposition of the rule in Copyright law that the scope of a copyright is limited by the copy of the artistic work that is deposited with the Copyright Office. See Skidmore v. Led Zeppelin, Case No. 16-56057 (9th Cir. En. Banc. 2020). The Skidmore case involved allegations by the Estate of guitarist Randy Wolfe that Led Zeppelin copied portions of a song called Taurus, written by Wolfe and performed by his band Spirit. Wolfe’s Estate claimed that Taurus was infringed by Led Zeppelin’s very famous song Stairway to Heaven.

In good news for Led Zeppelin, the court affirmed their complete victory at the trial level based, in part, on an examination of the copy of Taurus deposited by Wolfe with the US Copyright Office in 1967.

Over the last hundred years plus, the US Copyright has been updated and modified. However, under all versions of the Copyright Act, artists and authors of original works have been and are required to deposit with the Copyright Office at least one COMPLETE copy of the work that is sought to be registered. Legally, this is called the Deposit Copy. According to the courts, the requirement of a Deposit Copy is based on the text of the statute and serves three purposes:

  • To make a record of the claimed copyright allowing identification
  • To provide notice to third parties
  • To prevent confusion about the scope of the copyright

In general, if there is a lawsuit over copyright infringement, the owners of the copyright cannot claim infringement of elements not found in the Deposit Copy.

In Skidmore, the Deposit Copy of Taurus was a single page of sheet music; that is, the Deposit Copy was not a sound recording. The focus of the infringement claim was the opening notes — including five descending notes of a chromatic musical scale — in Stairway to Heaven which the plaintiff alleged to be substantially similar to an eight-measure passage at the beginning of Taurus. Proving “substantial similarity” is necessary to win a copyright infringement case.

At trial, the plaintiff sought permission from the judge to play a commercial recording of Taurus made by Spirit. No sound recording had ever been deposited with the Copyright Office. The trial judge said “no.” According to the judge, allowing the jury to hear a commercial recording would impermissibly confuse the jury with respect to the scope of the copyright which was limited to the notes and words shown on the Deposit Copy and did not include atmosphere, tone, energy and other not-easily defined aspects of a sound recording. However, the judge DID allow one member of Spirit to play the disputed part of Taurus live to the jury during the trial; but the sound recording was barred.

On appeal, the Ninth Circuit agreed. The trial judge properly excluded the sound recording. The scope of the copyright is limited by the Deposit Copy and cannot be expanded by implication or logic or some other argument.

For more information or if you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.

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