That Delco Lawyer’s Case Against Led Zeppelin Might Not Be So Bonkers

Media lawyer Francis Alexander Malofiy in a publicity photo.

When Media-based lawyer Francis Alexander Malofiy went to federal court in 2014 to file a lawsuit against Led Zeppelin claiming that the group stole parts of “Stairway to Heaven” from some long-gone group named Spirit, we had a good laugh, not only because the allegation seemed dubious to us but also because Malofiy wrote the complaint using Led Zeppelin-inspired fonts. We called the lawsuit “bonkers.” But now a judge in California has declared that there is enough evidence for the suit to move forward, and a prominent Philadelphia intellectual property attorney says that the jury probably won’t find the claims quite so hard to believe.

The case was transferred out of Philadelphia’s court to the United States District Court in Los Angeles, and the judge there issued a ruling on Friday that has to have Robert Plant and Jimmy Page and company scratching their heads and feeling a little nervous. The trial is set to begin on May 10th.

Malofiy filed the “Stairway to Heaven” lawsuit on behalf of Michael Skidmore, trustee for the Randy Craig Wolfe Trust. Who the heck is Randy Craig Wolfe, you’re wondering? He was the frontman for Spirit, a 1960s band that has certainly received far more publicity since the suit was filed than it did when Spirit existed. Wolfe died in 1997 and never sued the band himself.

The suit centers on the introduction of “Stairway to Heaven” and accuses Led Zeppelin of, among other things, “falsification of rock and roll history.” Malofiy also wrote that Spirit “pioneered the psychedelic rock sound.” Um …

The Spirit song in question is “Taurus,” an instrumental that clocks in at under three minutes. According to Wolfe’s estate, Led Zeppelin was undoubtedly aware of Spirit’s existence, claiming that the bands played three of the same festivals. Malofiy submitted concert posters to back this up. Court documents indicate that the surviving members of Led Zeppelin gave sealed depositions in which they said that they had no memory of this.

Listen to “Taurus” in all its previously unheard glory:

You’ll no doubt recognize a familiar sound about 45 seconds into “Taurus.” There’s an acoustic guitar that plays an arpeggiated descent for about three measures, and it’s notably similar to the opening bars of “Stairway to Heaven.”

The experts for Wolfe’s estate submitted lengthy reports insisting that there are substantial similarities between the two songs.

One stated the following: “If Stairway to Heaven is stripped down to the bare elements that received songwriting credit, the listener is left with two parts: [1] an arpeggiated guitar part, the signature element, which is substantially the same as the signature guitar element in Taurus; [2] a vocal melody that bears significant resemblance to the harpsichord in Taurus, followed by a series of riffs, chord progressions and solos.”

Another expert hired by the plaintiff found significant similarities including “the use of reverb to create a mystic, dreamlike quality [so that] each note of the guitar has a ‘whispering tail.'”

Whispering tail?! OK.

Led Zeppelin presented its own experts, one of whom found that the only real similarity is the way that both songs interchange their “A” and “B” sections, and he says that this has been done countless times in music for centuries. He also says that Wolfe’s experts completely ignore the rest of the song after the introduction.

Naturally, someone on YouTube put together their own expert analysis of the claim by mixing the two songs together:

It’s actually not the first time that Led Zeppelin has been accused of plagiarism and copyright infringement. As Malofiy dutifully documented in the lawsuit, there have been many similar claims involving “Dazed and Confused,” “Whole Lotta Love,” and “Communication Breakdown,” among other Led Zeppelin hits. Some of those claims reached settlements that included credit and royalties to the plaintiffs.

From the complaint (note the font):

Intellectual property attorney Jordan LaVine from Center City firm Flaster/Greenberg says that it’s a complicated case but that when it comes down to it, he wouldn’t put money on Led Zeppelin winning at trial.

“The question here is whether the songs are substantially similar,” says LaVine, whose clients include Martha Stewart and the New York Times. “As I listened to the Taurus song, there’s clearly a chord progression that brings the ‘Stairway to Heaven’ chords to mind, right off the bat. The parties have submitted detailed expert reports, but when it comes to the jury, they will listen to it the way that I do, and I think the plaintiff has a pretty good chance of success.”

LaVine points out that Malofiy doesn’t have to prove intent. In other words, Page and Plant, who co-wrote “Stairway to Heaven,” could have heard “Taurus” once or twice and subconsciously worked the segment into their own song, and doing it unknowingly wouldn’t let them off the hook.

He adds that due to the statute of limitations, Wolfe’s estate wouldn’t be entitled to damages going back to 1971, when “Stairway to Heaven” was released.

“They can only go back three years,” says LaVine. “They can only recover damages based on recent reissues and new releases, such as remastered versions. But those damages might still be significant.” (A remastered version of “Stairway to Heaven” was released by Led Zeppelin the same year that the suit was filed.)

The statute of limitations issue with the case is an interesting one. Before a 2014 Supreme Court decision regarding another copyright case involving the book Raging Bull and MGM’s Martin Scorsese film by the same name, Wolfe’s estate couldn’t have even brought this claim. That decision allowed the “Stairway to Heaven” case to proceed.

LaVine expects that the “Stairway to Heaven” lawsuit will never see a jury and that the band will settle with Wolfe’s estate in the next month. But if it does settle, the price tag has just gone up, thanks to the judge’s ruling in California.

“Before the ruling, all the leverage was in the defendant’s hand,” says Malofiy. “Now we hold the cards, and I would love to try the case. It’s about giving credit where credit is due. A David and Goliath sort of case, and easily the biggest copyright case in the history of the world. Over the years, Led Zeppelin developed a tremendous history, and now that history is beginning to crumble and fall.”

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