Copyright law protects original works of authorship. 17 U.S.C. § 102(a). Generally, the bar for what constitutes “original” is very low. But, at the same time, copyright law DOES require some minimal amount of originality. As one court phrased it, a “modicum [of] creative spark” is needed (in addition to independent creation). In a couple of recent cases, the US Ninth Circuit Court of Appeals has issued interesting opinions on the question of “originality,” but seems to have more than one mind about it. In one case, similar sequences of musical notes were deemed not “original” enough to be protected by copyright law; in the other, similar sequences of words were deemed “plausibly original.”

The first case involved the music to the Led Zeppelin song Stairway to Heaven. See Skidmore v. Led Zeppelin, 952 F.3d 105 (9th Cir. 2020). In that case, it was alleged that a sequence of about five musical notes was copied by Led Zeppelin from a song called Taurus, written and performed by Randy Wolfe, the lead guitarist for a band called Spirit. The plaintiff alleged that the beginning of both songs contained a similar set of five descending notes of a chromatic musical scale in A minor. The case went to trial and, eventually, the jury returned a verdict in favor of Led Zeppelin. Despite the use of a similar chromatic musical scale, the jury found that Stairway To Heaven was NOT substantially similar to Taurus.

The plaintiff appealed and, among other challenges, asserted that the instructions given to the jury were wrong and prejudicial. In particular, the plaintiff complained about what was called “Jury Instruction No. 16” which stated in part:

“Copyright only protects the author’s original expression in a work … [but] does not protect ideas, themes or common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes.”

In effect, this jury instruction explains that certain common musical elements cannot be owned by any individual and are not protectible under the copyright law. Fortunately for Led Zeppelin, the Court of Appeals held that Jury Instruction No. 16 was proper and was a correct statement of the. The court concluded that the descending scale of five notes was a common musical element that was not protectible.

The contrasting case is Hall v. Swift, Case No. 18-55426 (US 9th Cir. 2019) (unpublished) which involved the Taylor Swift song called Shake It Off. The plaintiffs in that case alleged that Shake It Off copied lyrics from a song called Playas Gon’ Play performed by 3LW. That song contains these lyrics: “Playas, they gonna play / And haters, they gonna hate.” Shake It Off contained these lyrics: “Cause the players gonna play, play, play, play, play/ And the haters gonna hate, hate, hate, hate, hate.”

Swift was sued for copyright infringement. At the trial level, the judge dismissed the claims made by writers of Playas Gon’ Play because the lyrics were “too brief, unoriginal, and uncreative.” On appeal, the Ninth Circuit Court of Appeals reversed and issued a brief opinion stating that the lyrics were “plausibly” original. The Taylor Swift case was returned to the trial court for further proceedings.

The two cases present an interesting contrast. Both cases involved songs, but one involved alleged copyright infringement of the music and the other involved the lyrics. It seems that, for the Ninth Circuit Court of Appeals, musical notes are easier to deem “common” and “unoriginal” than words. This sort of nuance and complexity is one reason to retain experienced copyright lawyers — like those at Revision Legal — if you need help protecting your copyrights and other intellectual property.

For more information, contact Revision Legal at 231-714-0100.

The Originality Standard: From Feist to the Ninth Circuit

The Supreme Court established the governing standard for copyright originality in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Feist held that the Copyright Clause of the Constitution requires both independent creation and a minimal degree of creativity. The “modicum of creative spark” formulation adopted by courts derives from Feist. The opinion famously rejected the “sweat of the brow” doctrine, holding that labor alone—without creative choices—cannot generate copyright protection. The tension in post-Feist case law is that courts acknowledge the threshold is low while simultaneously finding that certain categories of expression—short phrases, common musical patterns, standard literary tropes—fail to meet even that minimal bar.

Musical Elements and the Scenes a Faire Doctrine

The jury instruction in Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), which the Ninth Circuit upheld, reflects the application of the scenes a faire doctrine to music. That doctrine holds that elements that flow naturally from the standard treatment of a particular subject are not protectable. In music, scales, arpeggios, standard chord progressions, and common rhythmic patterns are the building blocks of musical composition that no composer can monopolize. The descending chromatic scale at issue in Skidmore fell squarely within this category.

The same analysis applies to literary expression. Common phrases, stock character descriptions, and generic plot devices are scenes a faire in written works. In Hall v. Swift, the Ninth Circuit’s reversal of the district court’s dismissal turned on whether the plaintiff had alleged sufficient facts to show that the lyrical expression “players gonna play / haters gonna hate” was more than a stock phrase. The appellate court concluded that at the pleading stage, the plaintiff had alleged plausible originality—the ultimate question remained for trial.

The Substantial Similarity Test and Expert Testimony

Even where a court finds that a work’s elements are sufficiently original to be protectable, a copyright plaintiff must still prove substantial similarity between the defendant’s work and the protectable elements of the plaintiff’s work. Courts apply two related tests: the extrinsic test (an objective comparison of the works’ specific expressive elements, often aided by expert testimony) and the intrinsic test (a subjective comparison of the works’ overall impression as experienced by an ordinary reasonable person). The Ninth Circuit also reaffirmed the “selection and arrangement” doctrine: even where individual elements of a work are unprotectable, the author’s unique selection and arrangement of those elements may itself be original and protectable.

Deposit Copy Limitation on Scope

A critical procedural rule in music copyright litigation is that the scope of a copyright registration is limited to what was deposited with the Copyright Office. A copyright owner cannot claim infringement of sonic elements (timbre, instrumentation, dynamics) that appear only in a sound recording if only sheet music was deposited. The Ninth Circuit held that the trial court correctly refused to admit a commercial sound recording of Taurus because no sound recording had ever been registered with the Copyright Office. This limitation shapes litigation strategy: composition copyright plaintiffs must build their entire infringement case around the elements visible in the deposited score.

Consult a Copyright Attorney

Copyright originality disputes are highly fact-specific and require careful analysis of both the creative expression at issue and the applicable legal framework. Whether you are a content creator seeking to register and protect your work or a defendant in a copyright infringement lawsuit, the copyright attorneys at Revision Legal can help. Contact us at 231-714-0100.