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.

In part, that’s because it implicates a theme I’ve been arguing for years: instrumental components of songs such as guitar hooks and riffs should be recognized as valuable parts of overall music compositions. We should not limit analysis to only whether some “lead melody” (usually the main vocal line) has been copied. At the same time, not every part rises to even the modest level of originality required for copyright protection.

To help think about this, consider a “professional” composer who scores a symphony or movie theme music: usually they notate out all of the parts in sheet music and there is copyright, ostensibly, on the whole composition. We don’t prejudice the clarinet line from the cello line, from perhaps even the tympani part, just because they are played on those instruments, or whether they are the “main” melody or not.

Some of those parts may of course be merely copies of standard existing themes/motifs, thus failing to be protectable based on that. If only that part is “copied” in another composition, then there is no infringement. But just because something is a rhythmic or harmonic part does not categorically exclude it from protection.

Let’s also distinguish “parts” (set scored or performed sections of music on a particular instrument) from the abstraction of “chord progressions.” Many commentators are calling the guitar parts in Stairway and Taurus chord progressions, but I think that is misleading. Some may disagree, but for my purposes a chord progression is a sequence of chords qua chords in a set progression of time over the beats/measures of a composition. It is not the particular rhythmic or precise way in which those chords and perhaps moving tones within or across them are performed or scored. So, for me, a “I IV V” progression (e.g., E A B or G C D), is simply the abstract notion of those chords played only on the beats of each measure, and changed only according to hits on those beats.

For example, a classic I IV V provides the basis of the Romantics “What I Like About You,” which is also pretty much the same as John Cougar Mellencamp’s “R-O-C-K in the USA.” With the chord numbers and “/” representing rhythmic hits on the chords, and “__” meaning a one beat rest, that common chord progression is:

||: I / IV __ V /  IV :||     (“||:” and “:||” show that a passage is repeated)

Now of course the exact strumming pattern as well as chord voicings can significantly change the feel and appeal of this progression. Voicings are different ways of stacking the notes that make up the chord. The standard major triad is I III V, but one could stack it III V I or any other permutation. Further, on wide pitch range instruments such as guitar or piano it is common to double stack a “chord” so there are six notes to the “triad” — they are still all I’s III’s and V’s however). So the exact way the Romantics play their I IV V is somewhat different from the way Mellencamp plays his. The difference based on exact rhythmic strumming pattern and voicing can be minimal or dramatic.

So what’s going on in the similar sound between the Stairway and Taurus guitar parts?

It is an ear catching motif because it is based around a chromatic descending line within a minor chord that “breaks” the rules of Western key centered compositions. Take a look at this video where I play the Taurus part twice, and then play only the descending line:

[If full guitar neck not visible go directly here instead]

While it could be notated as a sequence of chord changes on each beat, from a practical guitarist’s perspective it is what I call a “pass though line”—meaning a harmonic or melodic line passing through a single chord for most or all of the section. In a conventional key centered descending line, the drops would alternate between whole steps and half steps (two frets or one fret respectively on the guitar, where each fret is a half step). But here you can see that the line drops by 4 half steps–for 5 total discrete notes in the line. This is “chromatic” in that is uses all of the minimum Western note differentials (half steps). On a side note, non-Western music, as well as jazz, rock, and blues, in fact often use “microtones” (less than half step), which adds a whole other element and blows up the notion that there are “only 12 notes.”

Across many creative fields, “rule breaking” when just outside the norms can be arresting and original (or, if done poorly, just god-awful).

Look again at the video and you will see that I am playing the other notes of the beginning Am chord and only changing the notes on the 4th string for the descending chromatic line. At the very end there is finally a chord change to the D modal chord. But everything before that is, as a practical matter, simply a single pass through line within or around an Am chord.

Now look at the Stairway to Heaven:

[If full guitar neck not visible go here instead]

First, of course, I can’t believe that I am actually recording a clip of this—my wife looked at me and said “really?” (“NO Stairway!”)

That said, note that Page passes only the first three notes of the descending line through the Am, but then shifts to a D/F# chord (D with an F# root) for the fourth tone, and then to an Fmaj7 for the fifth discrete tone, ending with a G/B to an Am. Again, I play the full part twice, and then the pass through line on its own. Quite different after the first three notes.

Now look at the opening guitar part from The Beatles’ Michelle that predates both (1965):

[If full guitar neck not visible go here instead]

We are in Fm now, and working off only the top three strings of the guitar, but you should see/hear the chromatic descending line primarily within the Fm, before resolving to a C at the end. This version to me also evokes the French cafe-accordion-Edith Piaf vibe that this descending line works really well for. In this case, note the full 5 half step descent: it moves from VIII to major VII to flatted/dominant VII to VI to augmented (#) V to V.

Among other songs that predate Taurus, Michelle was used by Zeppelin’s defense attorney as a key example of this “common ancestor” motif in the trial this week.

Finally, look at Jim Croce’s Time in a Bottle that is roughly contemporary with Stairway and Taurus:

[If full guitar neck not visible go here instead]

We are in Dm now, but it also nicely steps down all the way to the V, and it places the descending line in the middle of the Dm chord voicing stack, not at the bottom of it. It also adds a fancy turn around from Gm6 to Gm to A7 to Gm and back to A7 that I fudge a bit here (didn’t have time to nail the exact smooth flowing voicings Croce used). Didn’t bother playing the descending line separately as you get the idea by this point.

Here is the upshot:

The first person who came up with this cool descending chromatic line within a minor chord would/should have gotten copyright protection for it under today’s standards. Irrelevant whether it is the “main melody.” That person is lost to the mists of time (might not even be Bach), and so now the motif has become, for me, “scenes a faire,” a copyright term of art for stock scenes or plot devices in plays or novels, but which I have adopted for standard devices used in composing music. These are not “building blocks” in the sense of notes and chords, but a more complex composing “design tool.” Remember, we are talking about the concept of a chromatic descending line starting at the octave and passing down through a single minor chord. Each particular composer will adapt or modify that overall concept to his/her vision and aesthetics. And as we see in Stairway, the first three descending notes over the minor chord alone can be enough to establish this motif, perhaps because it was so standard already by the time Page built the opening section of Stairway around it.

That doesn’t mean that every passage centered around it is non-protectable. What counts for originality and copyright protection is what the composer adds over and above this core concept/motif. Jimmy Page added counterpoint (the ascending line you hear played on the high string of the guitar) as well as different chords midway into the standard descent. Someone who copies that entire exact part may in fact be infringing Page and Zeppelin’s copyright in Stairway. Randy California unfortunately did not add much. He really just played the full chromatic descending line passing through the Am until shifting to a final D modal (note that the harpsichord that appears later in the song after the second time the Am descending guitar part is introduced actually hints at some of the counterpoint that Page would later add to his adaptation of the core motif—intriguing, but probably not enough to claim infringement by Page/Zepp). Nonetheless, if someone copied the entire part that California composed–all the way down to the D modal chord–then there could be infringement. McCartney, writing Michelle, added a nice turn around at the end, although the first part is simply the full descending pass through line over the Fm. Again, copying the whole thing, including the turn around, would be a problem in my book. Croce likewise adds an interesting turn around. In fact, this seems to be a tradition with this motif: use the initial 3-5 descending notes in the standard way, then conclude with an original turn around.

So in the end, I’m hoping the jury doesn’t find Stairway infringing, even if there was access and perhaps even if there was some intentional or subconscious copying. The thing that was copied was itself a scenes a faire melodic/harmonic motif quite popular and broadly used at the time Page was writing Stairway–and he didn’t even use the full version of the motif nor the ending/turn-around that California composed. Page and Zeppelin may well have improperly copied other parts that were original in other songs (see their earlier litigation and settlements). But to me, this is not one of them.

About Sean O'Connor

Sean O’Connor is the Boeing International Professor at the University of Washington School of Law (Seattle). He is also Chair of the Center for Advanced Study and Research on Innovation Policy and Faculty Director of the Cannabis Law &B Policy Project. With a diverse background in music, technology, philosophy, history, business, and law, he specializes in legal issues and strategies for entrepreneurship and the commercialization of innovation in biotechnology, information technology, and new media/digital arts.
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