Friday, April 29, 2016

The best hearsay evidence of all-time surfaces in the Led Zeppelin plagiarism lawsuit

Hearsay is a legal concept that non-lawyers use all the time without understanding its meaning. Hearsay is another way to describe gossip, or second-hand information. That does define hearsay, but people may not realize that even explosive hearsay is suspect because you cannot cross-examine it. This is why hearsay is inadmissible at trial. But some hearsay is too good to ignore. The best hearsay in the history of American law surfaced in the lawsuit alleging that Led Zeppelin stole the riff for Stairway to Heaven.

The case is Skidmore v. Led Zeppelin, decided by the Central District of California on April 8. Skidmore is the trustee for a rock star who passed away years ago, Randy Wolfe, who wrote a song called Taurus for the band Spirit. Taurus was written in 1967. Stairway to Heaven was released in 1971. For some technical reasons, Spirit is allowed to sue Stairway to Heaven after all these years.

Here is a comparison of the two songs:

Parts of Stairway to Heaven sound like Taurus. The trial court decides that the jury must determine if Jimmy Page and Robert Plant stole Taurus to write Stairway to Heaven. There is a lot of money at stake. Stairway to Heaven has been played hundreds of trillions of times on the radio since 1971. Any plagiarism finding against Led Zeppelin will likely cause that band's expulsion from the Rock and Roll Hall of Fame, just as Barry Bonds will never be elected to the Baseball Hall of Fame for using steroids. Or not. But a finding against Page and Plant will hurt their reputation.

Led Zeppelin denied any plagiarism, and Page and Plant claim they never heard Taurus before they recorded Stairway to Heaven. While Led Zeppelin and Spirit seem to have played at the same rock festivals in the late 1960s and early 1970s, Page and Plant claim they never got to know Spirit's band members. They also said they never heard Spirit's music during those encounters. The Spirit witnesses say otherwise.

In order to win the case, Spirit has to show that Led Zeppelin had direct access to Taurus or that Stairway to Heaven is substantially similar to Taurus. In the end, the court finds the jury may believe the songs are substantially similar to permit the finding that Led Zeppelin lifted Taurus for Stairway to Heaven. The jury cannot find direct access, the court says, in part because Spirit's evidence on this point is hearsay. The court may be right on the hearsay issue, but this is great hearsay: "Plaintiff introduces the testimony of Tracy Longo, Wolfe's longtime friend, who recounted a story Wolfe told him: apparently in 1968 or 1969, Page asked Wolfe to teach him the opening notes for Taurus." It is those opening notes that provide the very basis for this lawsuit.

The jury will never hear Longo's testimony because it is hearsay. That's because Longo would not really be testifying. Wolfe would be testifying through Longo. But Wolfe has died, and no one can cross-examine Wolfe about what he said about Page asking how to play Taurus. And that's how hearsay works. Had this lawsuit been filed in the 1970s, when Wolfe was still alive, he could have testified to this conversation with Page. As good as it is, Longo's testimony about what Wolfe told him is hearsay. Great hearsay, for sure, but hearsay all the same.

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