Meet the music copyright expert from the "Stairway to Heaven" case.

Elton John, Lady Gaga, Andrew Lloyd Webber, Katy Perry, Jay Z, Justin Bieber, Madonna, James Brown, Mary J. Blige, Kanye West, Billy Joel, Michael Jackson—name a famous musician who’s been involved in a copyright dispute, and chances are Lawrence Ferrara has been engaged on their behalf. Over the past twenty-five years, this NYU Steinhardt professor of music has earned a reputation as the go-to expert in high-profile cases of alleged musical theft, whether it’s the Beastie Boys’ use of a lick from a jazz flutist or a ’70s funk band claiming a Whitney Houston hit lifted their opening line.

Ferrara’s latest star turn came as an expert trial witness for the defense in this year’s lawsuit claiming that Led Zeppelin plagiarized the Spirit song “Taurus” in their iconic work “Stairway to Heaven.” Enlivening his hours of testimony with illustrative musical examples he played on a keyboard in the courtroom, Ferrara both noted substantial differences between the two compositions and, crucially, explained that the similarities between the famous opening riff of “Stairway” and the plaintiff’s “Taurus”—similarities alleged to have been stolen from “Taurus”—had actually been around for centuries, and had also been used in prior 20th-century megahits like the Beatles’ “Michelle.” He even presented the guitar part in a folk song from the public domain, “To Catch a Shad,” that shared those similarities in the familiar opening notes of “Stairway.” Led Zeppelin won the case.

NYU Stories talked with Ferrara about his rigorous approach to figuring out when, in the eyes of the law, musical imitation amounts to something more sinister than flattery.
 

photo: professor Lawrence Ferrara, seated with one hand on a piano

Lots of songs sound somewhat alike. How do you go about proving whether something was copied? Is it ever too close to call?
The first step is to listen to the two works at issue many times, and then to transcribe them both into musical notation, and write down the lyrics. After analyzing the transcribed music and lyrics, you ascertain whether there is musicological evidence of copying. Given the possibility that you find copying, you then need to answer the question: Is the expression that is the same or similar in the two works protected? Under U.S. copyright law, one cannot copyright “ideas”—“expression” is protected, which in music includes elements such as melody, harmony, rhythm, and lyrics. When there is a claim that the copying embodies “protected expression,” musicologists complete what is called a search for prior art to support or cut against that claim. In the Led Zeppelin case, in my prior art search I found that 17th-century works as well as many popular songs that predated “Taurus” and “Stairway to Heaven” shared their similarities.

So it wasn’t so much that “Taurus” and “Stairway” weren’t similar, but rather that the elements they shared were common to lots and lots of other music, going back hundreds of years?
Yes. In this case, the descending chromatic line and the chord progression that accompanies it in both works date back at least to 17th-century Venetian opera. Thus, the lamento or “lament” form, which included the elements at issue, was already common in Italy by the time the English composer Henry Purcell used it in “Dido’s Lament” in his 1689 opera Dido and Aeneas. Now, in the Led Zeppelin case, the plaintiffs’ music experts argued that the current norm for this descending chromatic line is to descend from the pitch ‘a,’ which is scale degree 1 in the key of A minor, to the pitch ‘e,’ which is scale degree 5. They duly noted that the descending chromatic line in “Stairway to Heaven” and “Taurus” does not descend to ‘e’— it stops one note short on ‘f’. Once again, according to plaintiff’s experts, this stopping one note short (on ‘f’) is currently very “atypical” and unique. That’s incorrect. In fact, while the downward descent to scale degree 5 (‘e’) was the norm 300 years ago in the “lament,” the length of this descending chromatic line changed thereafter. For example, jazz theorists call this a “descending chromatic line cliché” and demonstrate that it often does not descend to scale degree 5 (‘e’). Thus, in addition to the many songs I analyzed at trial, such as “My Funny Valentine,” which descends to ‘f’, I cited six books that provide other examples of the descending chromatic line cliché ending on ‘f’ (like “Taurus” and “Stairway”) in popular songs that predate “Taurus” and “Stairway.” It appears that the jury accepted my research: by the 1960s, there was nothing “atypical” about the descending chromatic line in “Taurus” and “Stairway.” Moreover, I believe they understood that even though it was alleged that Jimmy Page and Robert Plant were influenced by “Taurus,” what was similar between the two works was not protectable, so there was no infringement. In my opinion, that’s one of the things that makes this such an important decision: Even if you find that defendants had “access” to plaintiff’s work, plaintiff cannot monopolize musical expression that was in common use prior to plaintiff’s work.

Is it true that proving someone copied just three notes is enough to win a copyright case?
There is no required set number of notes, measures, or beats that constitutes “protected expression.” But there are precedents in court decisions that found that the three notes at issue were not enough. Nonetheless, there’s no bright line.

Does anyone ever claim that they copied accidentally—that a song they’d heard unconsciously worked its way into their own compositions?
The most famous case involving unconscious copying was Bright Tunes Music v. Harrisongs Music, which went to trial in 1976 in the Southern District of New York. The publisher, Bright Tunes Music, claimed that in his hit “My Sweet Lord,” George Harrison copied The Chiffons' hit “He's So Fine.” Harrison testified that while he had heard “He's So Fine,” he didn't copy it. The judge in that case, Richard Owen, studied music composition and was an opera composer. In his decision, Judge Owen wrote that he did not believe that Harrison purposefully copied “He's So Fine,” but he found that Harrison unconsciously copied. So “unconscious,” or as you term it, “accidental copying” as a misappropriation was established in that decision. Judge Owen’s decision suggests that it doesn't matter whether you consciously or unconsciously copy—if the copying embodies protected expression, there can be an infringement.

There are those who argue that “borrowing” (or stealing) is just what good composers do—that this is how music evolves. Could, say, the classical greats have produced their masterworks if they had to worry about obeying copyright laws?
Was Beethoven influenced by Haydn and Mozart? Of course he was. Were 19th-century composers influenced by Beethoven? Yes. In fact, some reviewers called Brahms’s First Symphony “Beethoven’s Tenth,” partly because it was obviously influenced by Beethoven’s Fifth and Ninth symphonies. But did Brahms’s First Symphony actually copy Beethoven’s melodies that would be considered an infringement today? No. Brahms and other 19-century composers invoked Beethoven’s models and ideas in a way that helped, in fact, to further codify compositional practices that were in the Beethoven symphonies. Now, can you find instances of a 19th century composer using an earlier composer's melody? Yes. Was it purposeful? Who knows. Would it be an infringement today? Perhaps. But what I think you're getting at is the concern many people in the music industry have recently raised that you could be sued if you were influenced by and thereby wrote a song within the overall style of an earlier song. If anybody could own and monopolize a musical style, that would, of course, shut down creativity for future composers.