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.

The Deposit Copy Requirement: Statutory Framework

The Copyright Act has long required deposit of copies of published works as a condition of registration. See 17 U.S.C. §§ 407–408. For works published before March 1, 1989—when the United States joined the Berne Convention—deposit and registration were generally required to maintain copyright protection. For works published after that date, registration remains optional but is required before bringing an infringement suit for works originating in the United States. See 17 U.S.C. § 411. The deposit copy rules define the universe of expression for which the copyright owner holds a registered right. The practical significance of the deposit copy limitation is most acute in cases involving pre-1976 works, where many registrations were made with sheet music or textual scripts rather than sound recordings, limiting the scope of those registrations to the notation or text of the deposited copy.

Sheet Music vs. Sound Recording: Why the Distinction Matters

In Skidmore v. Led Zeppelin, the critical distinction was between a musical composition copyright (covering the notes and lyrics as written in the deposited sheet music) and a sound recording copyright (covering the specific recorded performance, including timbre, rhythm, tempo, and production choices). When Randy Wolfe registered Taurus in 1967, he deposited a single page of sheet music—not an audio recording. His estate therefore held a composition copyright limited to the notes and words on that page. Sound recordings fixed before February 15, 1972 were not protectable under federal copyright law at all; they were protected only under a patchwork of state common law and statutory provisions. The Music Modernization Act of 2018 brought pre-1972 sound recordings into the federal copyright system, but only prospectively and with different terms than new recordings.

Implications for Sampling, Covers, and Derivative Works

The deposit copy limitation has direct implications for music sampling litigation. A party accused of copying a distinctive guitar riff, vocal ad-lib, or production technique from a recording cannot be held liable for copyright infringement under the composition copyright if those elements do not appear in the deposited sheet music. Conversely, a copyright holder who believes their recording has been sampled should evaluate whether they hold both a composition copyright and a separate sound recording copyright—and whether both registrations have proper deposit copies—before commencing litigation. For cover songs, the deposit copy limitation defines what is covered by a compulsory license under 17 U.S.C. § 115 (the mechanical license), which covers reproduction of the musical composition but not copying the specific arrangement or production elements of an existing recording.

Practical Advice for Rights Holders and Defendants

Copyright holders asserting infringement claims should obtain a certified copy of the relevant deposit copy from the Copyright Office before filing suit. This allows counsel to assess the true scope of the copyright and avoid alleging infringement of elements that were never deposited. Defendants in copyright cases should likewise obtain the deposit copy to identify any gap between what the plaintiff alleges was infringed and what was actually registered. In music cases, this analysis should be conducted by a qualified musicologist who can identify which elements of the plaintiff’s work appear in the deposited score and which elements exist only in the sound recording.

Speak with a Copyright Attorney

Copyright registration strategy—including what version of a work to deposit and how to maximize the scope of registration—can have long-term consequences for the value of your intellectual property portfolio. The copyright lawyers at Revision Legal advise clients on registration, enforcement, and defense in copyright disputes. Contact us at 231-714-0100.