Two recent copyright developments have been in the news over the past few days. One involves copyright infringement claims with respect to Martin Scorcese’s Oscar-winning 1980 classic, Raging Bull. The other involves copyright infringement claims regarding Led Zeppelin’s rock classic, Stairway to Heaven. In both cases, a key issue is whether the plaintiff in each action waited too long to file the suit or allege copyright infringement.
In a recent 6-3 decision, the United States Supreme Court ruled that Paula Petrella, the daughter of the late screenwriter Frank Petrella, did not wait too long to file her copyright infringement lawsuit against MGM arising out of the 1980 Oscar-winning film, Raging Bull. Her father had collaborated on a book and two subsequent screenplays (which served as the source of inspiration for the 1980 Martin Scorcese classic) with the subject of the film, boxer Jake LaMotta. She sued MGM in 2009, seeking to recover royalties from the ongoing commercialization of the movie. The U.S. District Court ruled that her lawsuit was barred because she could have filed the case years sooner and failed to do so. The 9th Circuit U.S. Court of Appeals upheld the lower court’s ruling. However, the Supreme Court overturned that decision and has given Ms. Petrella another opportunity to mix it up with MGM.
MGM had argued before the Court that Petrella’s delay in filing her case (about which she notified MGM as early as 1991) should have resulted in her claim being barred. Further, Section 507 of the Copyright Act requires that all civil actions for copyright infringement be brought within three years of the claim arising. The Court held that Ms. Petrella’s claims were not barred by the statute of limitations because MGM continued to release Raging Bull in different formats for years and that every new format release served to “reset” the three year statute of limitations clock.
MGM argued that Ms. Petrella delayed filing the case until after the studio had released the 25th Anniversary Edition DVD in order to maximize her potential award in the case and that allowing her to proceed with the case after such a long delay would be unfair to MGM since she could have asserted such claims before the studio had invested in the distribution and promotion of that edition. Writing for the 6-3 majority of the Court, Justice Ginsburg disagreed: “Allowing Petrella’s suit to go forward will put at risk only a fraction of the income MGM has earned during that period [i.e., the period during which she first could have alleged the claims until the time she actually did so] and will work no unjust hardship on innocent third parties, such as consumers who have purchased copies of ‘Raging Bull.’”
The three dissenting Justices, however, felt that the legal doctrine of “unreasonable delay” should apply to this case because Ms. Petrella waited 18 years after renewing her copyright registration to file the lawsuit. The dissenters agreed with the position of the Hollywood studios. In their view, giving plaintiffs an extended period in which to file lawsuits alleging infringement would amount to an unfair advantage over the studios who had invested millions of dollars to promote their films.
The bottom line is that the majority of the Court held that the rolling three year statute of limitations did not bar an action. The studios could retain profits earned prior to that three year period; the plaintiffs damages would be limited to those damages which accrued during the three year period and beyond.
Compare the Raging Bull case to another case that is about to be filed (and, coincidentally also involves a bull, of sorts). In 1969 a band called Spirit, whose guitarist and primary songwriter was the late Randy California, played some shows with Led Zeppelin. A trust established by Mr. California (which now owns his copyrights) is now alleging that Jimmy Page ripped off part of California’s Taurus as the opening, iconic passage from Stairway to Heaven. Page claims to have written Stairway in 1970, two years after Spirit released Taurus and the year following the joint gigs between Spirit and Led Zeppelin.
As both an entertainment lawyer and a professional musician, this case is fascinating to me. If you listen to the two recordings, the harmonic structure of the opening passage to Stairway is nearly identical to the section of Taurus (although the Estate of Richard Rodgers could also claim that the harmonic structure of Taurus is nearly identical to that of My Funny Valentine) and the melody is very similar. Under copyright law, the standard for copyright infringement can be met legally by showing that the alleged infringer had access to the copyrighted work and that the new work is “substantially similar” to the copyrighted work.
Assuming that the infringement standard could be met here, the same issue is presented as was presented in the Raging Bull case: has too much time passed since the claims arose? Remember, Stairway to Heaven was first released in 1971. My initial reaction, as a lawyer, was that there is no way that the court will allow the case to proceed, since the action could have been filed 43 years ago. However, in light of the Court’s Raging Bull decision, this could get interesting. A reissue of Led Zeppelin IV is due in stores in a couple of weeks. It, along with several other Led Zeppelin reissues, will contain newly released studio takes and live tracks, including a remastered track for Stairway to Heaven. If the trust’s lawyer can argue that this new release of this remastered version is, in fact, a new act of copyright infringement, the trust may be able to convince a court (relying on the Raging Bull decision) to issue an injunction preventing the distribution of the new CD and allow for the award of damages.
