On Thursday, July 7, 2016, Warner/Chappell Music Inc., the publishing company who was named as a co-defendant in the “Stairway to Heaven” copyright lawsuit that wrapped up last month, filed a motion to recover nearly $800,000 in attorneys’ fees and costs in California federal court. The fee request comes on the heels of a successful defense for the music company and mega-hit British rock band, where a jury concluded that frontmen Jimmy Page and Robert Plant had not infringed on any copyright in writing their famous guitar intro.
Warner/Chappell is seeking roughly $613,000 in attorneys’ fees and about $180,000 in defense costs, for a grand total of just under $800,000. It stated that the amount sought was appropriate in lieu of successfully defending claims that were nearly 50 years old — as “Stairway” made its debut on radio stations in 1971 — and filed for the sole purposes of harassing the defendants and gaining publicity for the plaintiff and counsel. The lawsuit gained notoriety almost immediately upon filing, where the estate of a founding member of the 60s rock band Spirit claimed that Led Zeppelin’s mates wrote “Stairway” after hearing and taking direct influence from one of their track’s called “Taurus.” The plaintiff in the case sought either $12,000,000 in compensatory damages or a co-authorship to “Stairway.”
However, the federal jury determined that while the two tracks may sound similar, copyright law does not protect common musical elements like chord progressions, sounds, and beats, as they more closely fall under the legal concept of public domain. What is copyrightable from a music standpoint, though, are things such as individual lyrics and compositions of specific musical notes, most commonly expressed in tangible form via sheet music. Unfortunately for the plaintiff in the “Stairway” case, the version of “Taurus” as performed from the copyrighted sheet music of the song was found to be too dissimilar from the copyrighted intro to “Stairway” to sustain a claim for infringement.
Interestingly, Warner/Chappell is one of the first litigants to request fees following the U.S. Supreme Court’s ruling in Kirtsaeng v. John Wiley & Sons Inc. earlier this year. In Kirtsaeng, SCOTUS stated that when a copyright litigant is successful in attacking or defending an objectively unreasonable infringement case, an award of attorneys’ fees and costs should follow a number of holistic factors or in instances where litigation misconduct on behalf of the opposing party can be shown.
Specifically, the music company asserts that Francis Malofiy, the plaintiff’s attorney, exhibited continued misconduct throughout the entirety of the case, including by intentionally filing the complaint in the wrong court at the outset of litigation and by repeatedly trying to have an uncopyrighted version of “Taurus” — allegedly the one actually recorded by Spirit in the studio — played for the jury after it had already been deemed inadmissible.
Adding fuel to the fire, Malofiy, who has vehemently rejected any accusation of misconduct, was suspended by the Third Circuit for three months from practicing in that jurisdiction at the end of June. That court found him guilty of misconduct in a comparable copyright infringement suit involving Usher’s song “Bad Girl.”