Why “Stairway to Heaven” Doesn’t Infringe “Taurus” Copyright: analysis & demo of “scenes a faire” motif common to both

[Updated with more accurate embed and analysis of fourth descending tone in Stairway to Heaven]

Jimmy Page brought his guitar to court today.

He’s defending his guitar part composition that forms the basis of the iconic Stairway to Heaven from allegations of copyright infringement. The estate of “Randy California” (Randy Wolfe) is suing Led Zeppelin on the basis of copying California’s Taurus that admittedly has a very similar sounding guitar part midway into the song.

Page et al are defending in part on lack of access. Even though they toured with California’s band “Spirit” before writing Stairway, Page claims to have never heard the song until his son-in-law told him some people on the internet were comparing the songs a few years ago. Page admits to even having some of Spirit’s albums, but none which contain Taurus.

I’m more interested in how Page and Zeppelin will defend against substantial similarity, assuming access to Taurus is established.

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Categories: Creativity, Fine Arts, Intellectual Property, Liberal Arts

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Digital First Sale at Asia-Pacific IP Forum

Recently I spoke on digital first sale at the 2014 Asia-Pacific IP Forum, an annual event that rotates amongst the partner law schools including UW, Seoul National University, East China University, and others. The event was hosted in Seoul Korea this year by SNU.

Slides of my presentations are linked below.


Preserving Innovative Business Models in Digital First Sale Debates (O’Connor Asia Pacific IP Forum 20141001)

Categories: Art, Commerce, Commercialization, Creativity, Electrical & Digital Arts, Fine Arts, Goods/Artifacts, Information Technology, Innovation, Intellectual Property, Services, Technology Entrepreneurship

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USPTO Cancellation of Redskins trademark does not mean the end of the mark/name

The media is treating the TTAB’s cancellation of 6 of the Redskins’ trademarks as if this is the end of the name/mark (pending appeal).


But, as the TTAB itself points out, federal registration is not the totality of trademark protection. Should the Redskins desire to continue using the marks/name–even if they appeal the TTAB decision and lose–they can enforce under state registration and/or common law rights. This is certainly more onerous than having nationwide federal rights. And it runs the risk that there might be some senior users in particular jurisdictions. But there are plenty of state-based marks used as brands out there. A good sign is whether the mark is identified by “™” or “SM” rather than ®. The latter may only be used for federally registered marks.


Thus, whether one likes the name or not, nothing about this TTAB decision itself forces Dan Snyder and the Redskins to abandon the mark/brand.

Categories: Commerce, Goods/Artifacts, Intellectual Property, Law, Services

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Crowdfunding’s Impact on Start-Up IP Strategy

[The following is summarized from my forthcoming article in the George Mason Law Review]

Crowdfunding has been heralded as a revolutionary and democratic way to connect ordinary individuals with innovative projects they would like to support. The version involving equity investments in start-ups will be regulated under the U.S. JOBS Act of 2012.[i] But start-ups who use this legal pathway will become essentially “junior” reporting companies under the securities laws with significant public disclosure requirements. This blog post argues that such disclosures may negatively impact start-ups’ intellectual property (“IP”) portfolios.
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Categories: Art, Commerce, Commercialization, Corporate/Securities Law, Creativity, Entrepreneurship, Intellectual Property, Law, Technology

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Congressional testimony on Sec 512 of the DMCA “notice and take down” for websites

Testimony of Sean M. O’Connor, Professor of Law and Founding Director, Entrepreneurial Law Clinic, University of Washington (Seattle)

Before the Committee on the Judiciary
Subcommittee on Courts, Intellectual Property, and the Internet

Notice and Takedown Provisions under the DMCA, § 512

March 13, 2014

Chairman Goodlatte, Chairman Coble, Ranking Member Nadler, Members of the Subcommittee, thank you for the opportunity to testify today about the current state of notice and takedown provisions under the DMCA.

I am a law professor at the University of Washington in Seattle and the Founding Director of its Entrepreneurial Law Clinic. We deliver a full range of corporate, IP, and tax services, focusing on business planning and transactions, to start-ups, artists, and nonprofits. I have also served as Director of UW Law School’s Law, Technology & Arts Group and its Law, Business & Entrepreneurship Program. I currently also serve on the Academic Advisory Board of the Copyright Alliance. Before academia, I was a full time attorney at major law firms in New York and Boston. I have continued an active private legal practice, with current social media clients such as Kolidr, and was General Counsel to Rhizome.org, a nonprofit arts organization for the digital and net art community. Before law school I was a professional musician and songwriter for 12 years, receiving airplay on college and commercial stations in the Northeast. Because of my multiple affiliations, it is especially important to state that my views here are my own and do not necessarily represent the views of any of the organizations I am or have been affiliated with.


The current litigation over the Innocence of Muslims video provides a timeliness to the hearing today, as the dispute started with a takedown notice from the actress, Cindy Garcia, to YouTube demanding that it remove the infamous video from its site. Putting aside the more complicated issues in that case, one of the defenses offered by Google (the owner of YouTube) was quite telling. Google asserted that taking down the video from YouTube would provide little relief to Ms. Garcia because it was so widely available on the Internet. Whatever the practical truth of this contention, Google’s claim that relief from infringing online content is essentially impossible reflects a common, disturbing narrative that we live in a post-copyright world where everything is available everywhere and there is nothing we can really do about it.

This attitude is both a cause and a result of the main failure of the notice and takedown system that I want to address today: the relentless reposting of blatantly infringing material. This is not material that the poster believes he has rights to, either by ownership, license, or transformative fair use. It is simply posted as an end run around copyright law for fun or profit. This end run is largely made possible by notice and takedown and the safe harbor for online service providers.
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Categories: Art, Commerce, Commercialization, Creativity, Electrical & Digital Arts, Entrepreneurship, Fine Arts, Information Technology, Innovation, Intellectual Property, Law, Technology, Technology Entrepreneurship

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