I never attended drum clinics when I was starting out, probably because I was too shy or scared or didn’t have the money. So that’s why this – my first ever drum clinic – is aimed at every kid in Saskatoon, no matter what your level. Maybe you’ve never had a lesson before. Perfect. Maybe you’ve never even played drums before. Perfect. Come hang and talk music, and I’ll tell you how it changed my life. Oh and it’s free. See you Saturday!!
If you write your own songs, at some point in your career you will want to consider whether signing with a music publishing company makes sense.
Music publishers are sort of like record labels, but for your compositions rather than your master recordings which embody your compositions.
The right music publisher can take your career (and your earnings) to the next level. The wrong publisher can do the opposite. As with choosing a record label, choosing a music publisher is one of the most important decisions of your career, and should be treated as such.
Here are some things to consider when looking at signing with a music publishing company:
Is it the Right Fit?
In essence, all music publishing companies do the same thing: they license your songs and collect your music publishing revenue. However, every music publishing company does this differently. Some publishers work very closely with their writers, arranging co-writes, providing feedback on compositions, and generally guiding the direction and growth of their writers’ careers. This sort of “proactive” publisher often has a creative team that works directly with the writer, and actively pitches their songs to music supervisors, corporate clients, and labels.
On the other end of the music publishing spectrum are more “reactive” companies, that focus more exclusively on administration. These publishers are happy to approve a placement that lands on their desk, but won’t actively pursue it. This music publishing entity is essentially an accounting firm that assesses the value of a potential client’s catalog and earning potential, and buys a piece of it for a price. This “price” is known as a publishing advance, and can be quite sizeable. Seven figure music publishing advances still exist in 2017. Indeed, music publishing is one area of the music industry that continues to have serious value, despite the downturn in music sales.
When is the Right Time?
For most songwriters, signing a music publishing deal is a question of “when” rather than “if”. So: when is the right time? The answer is different for every songwriter, but something I have learned over my years as an entertainment lawyer is this: you will know when the time is right.
Sometimes a deal comes in the first year, sometimes it takes a few decades and a thousand songs. Last year I negotiated a million-dollar music publishing deal for a client who at the time had only written and released seven songs. The hype and excitement around this particular writer was exceptional and of course atypical, but it was quite clear based on the offers being tabled that the time was right to strike a deal.
Most of us aren’t so fortunate, so it’s really a matter of doing your thing until the right offer is presented. It might take one year; it might take twenty.
Do You Want a Major or an Indie?
Many of the largest publishing companies are directly tied to major record labels. Warner Chappell and Warner Music; Universal and Universal Music Group; eOne Publishing and eOne Recording; Nettwerk Music Group and Nettwerk Publishing.
Many indie companies contract a major to administer their catalog. Then there are the “fully indie” companies that do it all themselves.
As with the record label discussion, it’s really up to you to determine what size of publisher is best for you.
While the smaller publishers might be more personalized and focused on you as an artist, they might lack the connections of the big time players.
And while the majors have the connections and the resources to take you to the top, you might get lost in the shuffle of the other clients on their roster, when your songs are competing against those by Beyoncé, Coldplay, Adele, etc.
Why Do They Want You?
As mentioned earlier, all music publishing companies essentially do the same thing. One question I always pose to my clients: why does this particular publisher want to sign you? You’re giving up 25% to 50% of all your publishing revenue streams, so they better be worth it. Why are they excited about your songs? What do they plan to do with them? What placements or endorsement deals do they think fit your brand and artistic vision?
Before you sign away a significant chunk of your music publishing revenues, make sure someone at the publishing company is excited about your music and has a plan for it going forward. You also want to make sure that this person will be available and responsive to your questions and concerns after the deal is signed.
Do You Need a Publisher at All?
Many songwriters self-publish, and avoid signing with a third party publisher at all. Songwriters who retain their publishing rights and earn 100% of the publishing income generated by their songs. In addition to earning twice the revenue, self-publishing ensures that you control all creative and business decisions regarding your songs.
The major drawback to self-publishing is similar to that of self-releasing your music: you miss out on the benefit of the connections and clout brought by a publisher (or record label).
In other words, as a self-published artist, you will have to secure placements and generate income yourself, while handling the accounting and administration. Some artists are good at it; many are not. Ask yourself whether you have the knowledge and time to be an effective publisher, and what sort of demand your catalog is generating.
Signing with a music publisher can take your career to the next level, but be sure you do your research, pick the right one, and know what to expect going forward. As always, send me questions along the way.
Whether you’re a seasoned touring musician or about to embark on your first tour, there are many things to take into consideration before hitting the highway. Here are the 16 questions a touring musician should ask before loading up the van:
1) Are Your Gigs Confirmed & Contracts Signed?
This might seem like an obvious starting point, but I know numerous touring musician friends and clients that have shown up at a venue to play, only to find that the promoter has double booked another band or event (or has completely forgotten that the show was booked in the first place). As you can imagine, things don’t go well from here. Make sure all your shows are confirmed and all contracts are signed. Verbal acceptance over the phone or written acceptance via email will not suffice. Unless you receive a signed contract from the promoter, you will not have any remedies if things go south. An experienced touring musician knows the important of a signed contract.
2) Have You Received Deposits for Your Shows?
One way to help avoid being double booked or cancelled last minute is to receive a deposit in advance. Fifty percent of the guarantee is an industry standard deposit. Once the promoter has spent their own money, they are less likely to forget about the show or cancel it last minute. If you’re working with a major booking agent, they will likely demand half the guarantee well in advance of the show. If you’re self-booking, I would still ask for half the guarantee in advance, but this will likely require that some sort of contract be in place.
3) How Are Gig Cancellations Dealt With?
Shows are cancelled all the time. Whether you’re AC/DC or a regional touring musician, you need to know how what will happen if the show is cancelled. Reasons for cancellation might include sickness, injury, force majeure (legal jargon for “act of God”, i.e. tornado, hurricane, flood, etc.), a change in availability, a breakup of the band, or a better opportunity arising (for either the artist or the venue). Whatever the case, the contract signed with the promoter should clearly state how the cancellation will be dealt with. I always suggest inserting language indicating that if the promoter cancels less than thirty days in advance of the show, the entire guarantee must be paid to the artist. If the promoter gives more than thirty days’ notice of their cancellation, then only the deposit is forfeited. If the artist if forced to cancel, typically the deposit is simply refunded to the promoter.
4) How Will You Get Paid?
The currency in which you’ll be paid might seem obvious, but I assure you it’s not. Whether you are being paid in cash, cheque, e-transfer or beer, the discussion needs to be had ahead of time. I’ve had promoter’s cheques bounce when I tried to cash them two days later. I’ve had e-transfers denied because the promoter’s bank didn’t work with the artist’s bank. I’ve had dozens of promoters attempt to avoid paying tax on the guarantee (innocently or not). Remember: touring musicians must pay the tax on their guarantee to the government anyway, so if you fail to collect it, you are actually reducing your guarantee accordingly. Tax is applied to the entire guarantee, not just the half of the guarantee that you collect at the show. More times than not, promoters will think the tax applies only to the remaining half. Depending on the size of your guarantee, this can cost you hundreds or thousands of dollars.
5) Will You Receive Per Diems?
A savvy booking agency will negotiate per diems in to your guarantee, so that each member gets a little extra cash to cover food and expenses. But you don’t need a booking agent to ask for per diems. Don’t ask for the moon if you’re a start up band, but proposing a per diem of $20 per touring musician would be in line with industry standards, and might actually come across as more professional. Again, it depends on your draw and the level of your band, so be reasonable.
6) Who Will Be Paying You?
Having a signed contract and knowing the amount that you are to be paid is great, but tracking down the person that will be paying you is a different story. I always recommend that touring musicians advance this information with the promoter ahead of time, and asking for a cell number and email address for your day-of contact. Many times, the person who books your band is not the same person that will be paying you at 2am. Reach out to this person via text or email the day of the show, and establish that line of communication. And then plan to meet shortly after your set at a certain location (venue office, back bar, etc.) to settle up. Bigger artists will sometimes demand payment before they go on stage. Unless you’re playing arenas, this is not likely going to be the case.
7) Will the Venue Take a Cut of Merch Sales?
This is a big one, especially in recent years. As a touring musician, I’ve seen this really expand in recent years, and not in our favour. More venues are taking a higher percentage of your merch sales than ever before. Whether this a shameless money grab or a reflection of the current economic realities of live music venues is a debate (and an article) in and of itself. Not all venues take a piece of merch. However, what I’ve seen in the last few years is that most venues will take 10 to 25% of your gross merch proceeds. As an artist myself, I always fight this as much as I can, and try to push this number as low as possible when negotiating the show. For me, merch is what puts food in your belly and gas in the tank, and venues should leave it alone. Venue owners argue that without their venue, you wouldn’t sell merch. I would argue that, without your music, they wouldn’t sell any liquor that night. So by their logic, you should get a piece of their liquor sales. Not surprisingly, I’ve yet to be successful with this argument, but feel free to use it when negotiating the merch issue. Tell them LawyerDrummer sent you 🙂
Another thing to bear in mind is that the venue will charge you an additional fee if they are providing someone to sell your merch. Depending on the size of your band and the size of the venue, this vendor fee can range from $50 to $100 per vendor. If you’re travelling with someone who can sell merch for you, then you of course save this fee. However, there are obviously other costs associated with adding to your touring entourage. From my experience, you can often get a reduced vendor fee if you agree to give the person slinging your merch a signed t-shirt.
8) Have You Confirmed Travel Route & Accommodations?
This is simply a logistic consideration. When you’re planning your travel route, make sure you’re avoiding any closed highways, heavy construction, natural disasters, etc. Many touring musician friends have missed gigs because they’re stuck on a highway waiting for a highway to reopen. Also, if you’re driving through the night, make sure you choose a route that will have open gas stations along the way. My band once embarked on a 55-hour straight drive from Toronto to Vancouver, through the Northern United States, and we had to plan our nighttime gas stops accordingly. In case you’re wondering, I don’t recommend driving that long without a hotel stop J
When it comes to accommodations, I strongly suggest against leaving the hotel booking until the day of the show. Hotels book up and/or rates shoot up unexpectedly, so book ahead. If you need to request a late check-out or early check-in, most hotels are accommodating and it can make all the difference on a long tour.
9) Do You Have the Right Documentation for Border Crossings?
Once you know your routing, make sure you have all documentation necessary to cross international borders as needed. There are countless stories of touring musicians both big and small that have been turned away at the border (or fully detained), causing them to cancel shows or an entire tour. The modern reality: border crossing is a serious thing and not to be taken lightly. Have all documentation ready, including updated passports, a work VISA if needed, a gear manifest and merch manifest, and a complete list of tour dates and routing when crossing international borders.
10) Do You Have Insurance on Your Gear?
Sadly, the number of times I’ve heard of touring musicians having entire vans or trailers full of gear stolen while on tour is quite high. And they never seem to have gear insurance. My band has a lot of expensive, top of the line gear, and we pay around $800 a year to insure it. Prices vary from state to state and country to country, but the principle remains: if you take your career seriously and plan to do any real touring, you need gear insurance or you’re playing with fire. Insurance will protect your gear from more than just theft; it will also protect it against damage from fire, flooding, etc. It’s worth making a phone call to get a quote, in advance of your next tour.
11) Do You Have the Right Phone Package?
This might seem simple but it’s something that every touring musician should consider: what additional costs will be incurred based on your tour routing? If you’re travelling outside of the country, this becomes more important. But perhaps your data plan is small and in order to properly promote this tour you need to increase it. If you are touring Europe, for example, perhaps you cut roaming costs by having one phone that all band members can use. The bottom line: you don’t want to come home with several hundred dollars in extra phone charges.
12) Do You Have Enough Backup Supplies?
This can mean extra drum skins, sticks, even an extra cymbal or two. There have been a few times on tour when I’ve broken my kick pedal and had to rely on the opening act’s drummer to rescue me. A backup pedal isn’t the worst idea. I’ve also broke through the beater skin on my kick drum a few times, and finding a replacement 26-inch skin at the venue wasn’t going to happen. So pack extras of everything and throw them in the van or trailer, and be prepared when this happens.
13) Have You Sent Out Your Tech Rider and Hospitality Rider?
Giving your sound tech an idea of what gear you’ll be using, what your stage setup looks like, and what special requirements you might have goes a long way for any touring musician. The tech will likely appreciate it, and it will help avoid any last minute technical issues. Perhaps you are using in-ear monitors and don’t need him to spend time working on wedge monitors. Perhaps you have an pre-recorded intro that you play as you walk on stage. Perhaps your singer has a wireless mic that won’t get good reception in the basement bar. Perhaps the venue cannot accommodate 8 vocal mics. All of these points should be dealt with ahead of time by advancing your tech rider to the promoter.
The same applies to your hospitality rider. Don’t expect to get pulp-free, non GMO coconut water and gluten free, artisan bologna sandwiches unless you advance this with the promoter and have them sign off on it. If your expectations are too high in terms of hospitality, the promoter will let you know.
14) How Long Are You Playing Each Night?
This should be confirmed in the contract and reiterated at sound check, so every band knows how long and what time they are playing. A smart promoter or venue rep will print out set times and tape them to the stage and dressing room. Going beyond your allotted time as an opening act, even if you start late, is a major faux pas. It doesn’t matter that the band before you went over. Let them be unprofessional. Finish before your cut-off time, not after. When my band toured arenas with Def Leppard, their stage manager told us stories of bands that had been kicked off arena tours for going two minutes over their set time. An experienced touring musicians will finish two minutes early instead, and tear their gear off stage immediately. The headliner (or more likely, their people) will appreciate it and it will go a long way. As a headliner, my band has had opening bands play 15 minutes longer than they should, and we never had them open for us again. It’s just unprofessional, and will undoubtedly close doors for you.
15) Who is Providing Sound Equipment and Backline?
This might seem obvious but trust me: I’ve seen many touring musicians show up at venues expecting that a sound system has been provided, and the dumbfounded look from the venue owner confirms otherwise. The resultant dash to the local music store to rent a full sound system (if you’re lucky enough to find one) is never cheap, and never a good thing. Advance these details with the promoter, and get an idea of what sort of gear you’ll be playing through. They might not have enough microphones for your 18 piece Neil Peart inspired setup.
The issue of backline becomes more of a consideration at festival shows, where headliners are flying in and drums/amps/etc. are provided for each act. But I’ve seen it apply to club shows as well, where all drummers are expected to share the same kit. It can be awkward when four sets of drums are lugged up a stairwell and the shared kit news is shared with everyone. A smart touring musician will advance this information with the promoter, and if you need certain instruments to be provided, be crystal clear in what those instruments are.
16) Can Your Performance Be Recorded and Exploited By the Promoter?
One final consideration to ponder is whether your performance can be recorded and released by the promoter. In the content-obsessed era that we live in, this is something that I’ve seen come up more and more as of late. Many festivals, for example, require that the performer’s set be filmed and used by the festival as they see fit. Perhaps you don’t want this, or you want to be the first to release this live recording to the public. If the festival or venue has the ability to sell the live performance in any form, that’s a red flag. Obviously, a great deal depends on the bargaining power of the promoter and the touring musician, but for now, it’s something that you should at least be aware of.
There are other things to think about before touring (what happens if your van breaks down), but this is a good start. As always, feel free to email me with any questions and best of luck on the road!!
Sometimes life is gloriously random. Turkish National News has chosen the Led Zeppelin plagiarism case as one of the top entertainment stories of 2016, and just interviewed me as part of their year-in-review program!! The year-end special will air every 4 hours on December 4th, and be seen by several million viewers. I’m getting quite the following in Istanbul…
The Led Zeppelin plagiarism verdict is in. I’ve been watching with baited breath. Not because the Zeppelin tattoos on my arm might have to be covered with long sleeves the rest of my life if they had lost, but because of the deeper impact the decision would have on the music industry and creativity as a whole.
In my article here, I examined the legal requirements of a successful plagiarism suit, and predicted that Zeppelin would be found not guilty. This prediction turned out to be accurate as the Los Angeles federal jury charged with the task came back with a unanimous verdict: Led Zeppelin did not plagiarize the song “Taurus” by American band Spirit in the composition of their classic “Stairway to Heaven.”
Reactions to the Verdict
The jury’s decision comes after a highly publicized trial which saw heated debate on both sides of the issue, as experts in the music industry and legal profession pontificated on whether copyright law should protect certain elements of song.
“We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years,” Robert Plant and Jimmy Page said in a statement. “We appreciate our fans’ support, and look forward to putting this legal matter behind us.”
Plaintiff Michael Skidmore, a trustee of the estate of Spirit guitarist Randy Wolfe (aka Randy California), had a different reaction: “It was all skewed in Led Zeppelin’s favor. All I can say is money talks louder than common sense. We did the right thing. We tried to carry on Randy’s legacy.”
“Communication Breakdown” – Plagiarism Lawsuits On the Rise
The decision comes amid a serious upturn in plagiarism lawsuits in the music industry in recent years, particularly following last year’s verdict in the Robin Thicke “Blurred Lines” trial. In that groundbreaking decision, a Los Angeles jury determined that “Blurred Lines” infringed Marvin Gaye’s 1977 single “Got to Give It Up” and awarded the Gaye estate $7.4 million (later reduced to $5.3 million and currently on appeal).
In the last year, plagiarism suits have been brought against Kanye West, Jay-Z, Beyonce, Justin Bieber and Ed Sheeran among others. In short, there has been a major increase in ambulance chasers in the music business since the Thicke verdict. The outcome of the “Stairway” trial shows that these cases aren’t easy to win, and might in fact slow down the increase in plagiarism suits.
“Celebration Day” – Why Did Zeppelin Win?
As I outlined here, a successful plagiarism claim must prove two things: access and substantial similarity.
On the matter of access, both Plant and Page testified that they did not remember meeting the members of Spirit or hearing “Taurus”, despite the fact that the Spirit album was found in Page’s (admittedly vast) record collection and the two bands played together on the same bill multiple times.
There was also an amusing anecdote from a Spirit member involving rounds of drinking and snooker with Plant after a Spirit gig in 1970, but Plant testified that he only remembered his car crash on the way home, not hearing or meeting Spirit that night. While the car crash story would seriously undermine the credibility of a witness in most trials, I think it actually endeared Plant to the jury in this one. As such, the issue of access wasn’t as clear cut as I thought it might be.
(Author’s note: singers get away with everything!).
2) Substantial Similarity
On the matter of substantial similarity, the jury ruled that the elements of “Taurus” that were original and therefore copyrightable were not substantially similar to “Stairway,” and the parts that were similar were not unique or original.
And therein lies the rub. The elements of “Taurus” that were used in “Stairway” were not unique and original. To quote legendary guitarist Joe Walsh: “The Stairway claim was based on the four chord descending progression at the beginning of the song…Randy California came across [it] and used [it] for the Spirit piece – he didn’t write it. He used it. The Grandfather of these progressions is: C, Am, F, and G. Starting in the early 1950’s, there are probably 500 of these songs, all with those four chords – but each with different melodies and words. THAT should be the criteria for claims…”.
To paraphrase Joe Walsh: you can’t copyright a chord progression, but when original lyrics and vocal melodies are added, something changes.
Why Did Zeppelin Win?
Now, are the two songs similar? Without a doubt. But similarity does not equal plagiarism; “sounding alike” doesn’t violate a copyright. There must be many similar elements that combine to create an egregious copying of one song by another.
The major similarity between “Taurus” and “Stairway” is a descending chord progression. Musicologist Alex Ross devoted a chapter of his book Listen to This to the history of what is often called the basso lament – a bass line that descends chromatically (i.e. a half-step at a time) from the tonic note to the dominant.
The basso lament arose in operatic music of the early 17th century, and is incredibly common in Baroque music. The progression became less common in the Romantic period, but returned to fashion in pop music of the twentieth century, particularly in 1960s and 1970s folk and rock. The pattern can be found in everything from Bob Dylan’s “Ballad of a Thin Man” to the Eagles’ “Hotel California” to “Chim Chim Cher-ee,” from “Mary Poppins.
Jimmy Page actually acknowledged the influence of “Chim Chim Cher-ee,” on “Stairway” during the trial, noting that “I liked the idea of music going at counterpoint and I used that and similar ideas in my music. ‘Stairway to Heaven’ has a descending chromatic line over which there is also an ascending line, so that the music is going in two different directions.”
(Author’s note: I guess my next tattoo will be of Mary Poppins. I’m planning a back piece.)
This so-called basso lament can be found in thousands of songs around the world, many of which share the same chords as “Taurus” and “Stairway.” Zeppelin’s lawyer was keen to point this out, and successfully so. For me, this was the argument that won the day – that you can’t copyright a chord progression, and a chord progression is what this case really boils down to.
“Good Times, Bad Times” – How This Verdict Affects You and I
The jury came back with the right verdict. As much as my personal biases lead me to root for David in a David vs. Goliath battle (and Page and Plant were surely Goliath in this case), this was the right decision for a number of reasons.
First, it will slow down the ambulance chasing that has been happening in the music industry these last few years. A verdict against Zeppelin in this case could have truly opened the floodgates on these claims. A music industry overrun by lawyers and sharks is not my kind of music industry. Don’t get me wrong, some plagiarism suits are valid and indeed necessary in order to protect creativity. But copyright law is a shield not a sword. When lawyers and litigants smell blood in the water, minor similarities in songs will trigger multi-million dollar lawsuits and the whole industry will be overtaken by men in suits. (I don’t wear a suit, if you’re wondering.)
The second reason that this verdict is the right one is far deeper, and more important in my opinion. The verdict is a good thing for creativity and art. Artists of all kinds, especially songwriters, need to be allowed some measure of borrowing. It’s asking an awful lot of musicians to clear their heads of everything that they’ve heard before when writing a song; to come at it with a clean slate. The tradition in rock, blues, jazz and many other genres is one of borrowing bits and pieces here and there from the giants that have come before you.
The modern-day insistence on clear-cut originality reflects a misunderstanding about the nature of creativity. T. S. Eliot famously noted that “immature poets imitate; mature poets steal” – but it’s the second part of the quote that I love and is often overlooked: “a good poet welds his theft into a whole of feeling which is unique.” In other words, all inspiration is borrowed from what has come before, but can be turned into something entirely novel. That is the alchemy of art and of songwriting: taking the common metal around us and turning it into gold.
This is the alchemy performed by Bach and Mozart, Shakespeare and Tarantino, the Beatles and the Rolling Stones.
This verdict reaffirms the creative rights of songwriters to be songwriters. Demanding that our geniuses create art in a vacuum is not only unrealistic, it would in fact kill the creativity that copyright aims to protect. We have little to gain from songwriters writing with apprehension and fear.
What constitutes music plagiarism? The line between inspiration and plagiarism is a fine one, and is the crucial distinction when it comes to music plagiarism. As I examined in my article here on the Robin Thicke vs. Marvin Gaye trial, everyone from Shakespeare to the Beatles to Sam Smith has been accused of stealing ideas from those that came before them.
As poet T.S. Eliot famously wrote: “Immature poets imitate; mature poets steal.”
The Plagiarism Claim
One of my favorite bands of all time, Led Zeppelin, is now under the microscope for apparent music plagiarism in their classic “Stairway to Heaven”. “Stairway” is largely considered one of the greatest rock songs of all time (and apparently the most played rock song in the history of FM radio). The song they’re accused of plagiarizing is a somewhat obscure instrumental called “Taurus” by the American band Spirit, released in 1968. “Stairway” was written in 1970 and released in 1971.
(Legal aside: while the statute of limitations for civil copyright infringement under U.S. law is three years, courts often read that as only restricting back royalties to the previous three years. It does not bar old infringements. Which is why this case can be brought 45 years after the release of the song).
A United States district judge decided in April that, while the four-chord backbone shared by the two songs is a common convention in the music industry, the similarities between the songs were more than just chord structure. A jury will now decide in June whether the “Stairway” opening segment was stolen from “Taurus” and if Robert Plant and Jimmy Page are guilty of music plagiarism and liable for copyright infringement.
(Second legal aside: the claim against bassist/keyboardist John Paul Jones was dropped, as he was not credited as a writer of the segment in question).
The timing of this lawsuit could not be more critical: starting in June, Led Zeppelin is preparing to re-release all of their albums in deluxe, re-mastered vinyl and CD editions. Zeppelin IV (which contains “Stairway”) is Zeppelin’s best-selling album.
“How Many More Times” – Previous Plagiarism Claims Against Zeppelin
This is not the first time the band has been sued for music plagiarism. Since the 1970s, Zeppelin has made settlement agreements and granted writing credits to other artists for several Zep songs, including “Whole Lotta Love” (blues legend Willie Dixon), “The Lemon Song” (blues legend Howlin’ Wolf), “Dazed and Confused” (folk singer Jake Holmes), and “Babe I’m Gonna Leave You” (folk singer Anne Bredon, whose son asked her in the 1980s why she covered Zeppelin early in her career. Her response: “that’s actually my song”). For a list of the 13 songs that Zeppelin has been accused of music plagiarism in the past, see here.
“Communication Breakdown”- How This Ended Up at Trial
In May 2014, Spirit’s bassist Mark Andes brought a music plagiarism action on behalf of Spirit’s guitarist, Randy Wolfe aka Randy California, who drowned in 1997 in the Pacific Ocean while attempting to save his drowning son (his son survived). According to court documents, Mr. Wolfe was interviewed about the similarities between the two songs before he died. He said that he had been friendly with the members of Led Zeppelin, and that if they wanted to take his song, “that’s fine.”
However, lawyers for the Wolfe estate argued that “the tenor of the interview” indicated that Mr. Wolfe “felt cheated by Led Zeppelin and was merely trying to save face and make light of a bad situation.” According to the court documents, Wolfe complained about the similarities between the songs. “I’d say it was a rip-off. And the guys made millions of bucks on it and never said ‘Thank you,’ never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.”
Lawyers for Zeppelin argued that any similarity between the songs was limited to a chord structure that has existed for centuries, and is too commonplace to be entitled to copyright protection. This argument was trampled under foot. The district judge stated that “while it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure.”
“When the Levee Breaks” – Plagiarism Trials Becoming More Prevalent
The jury trial, set for June of this year, is the second high-profile music plagiarism trial to make headlines in the last two years This is a trend that some industry experts say may open the floodgates to more plagiarism lawsuits.
In 2015, the very same Los Angeles court that will hear the Zeppelin case awarded more than $7.4 million to the family of R&B legend Marvin Gaye after finding that the Robin Thicke and Pharrell Williams hit “Blurred Lines” had copied elements of Mr. Gaye’s 1977 song “Got to Give It Up.” The judge later reduced that amount to about $5.3 million. The case is now on appeal.
Wolfe’s lawyer has said that he’s seeking a songwriting credit for his client, and is willing to settle for $1 if the songwriting credit is given. The $1 offer would, however, come at a much larger price: Mr. Wolfe’s estate would share in all future songwriting revenues from the song. Any windfall from the judgment would apparently go to the Randy California Project, which supplies musical instruments and lessons to students at low-income schools in California. The windfall has the potential to be massive. As of 2008, “Stairway” had reportedly earned $562 million. It could be the single most profitable song in rock history. Needless to say, there is a lot riding on this jury’s decision.
“Good Times Bad Times” – The Legal Test for Plagiarism
The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming music plagiarism must prove two things, Access and Substantial Similarity.
Wolfe’s legal team must first prove that Page and Plant had heard, or could reasonably be presumed to have heard, “Taurus” prior to writing “Stairway.”
“Stairway” was recorded between December 1970 and January 1971, and was first performed in March 1971, according to court documents. Before that, Zeppelin and Spirit toured the same venues and played at the same festivals on the same day at least three times between 1968 and 1970.
Lawyers for Wolfe also presented an interview that Page gave in 1970: “Spirit do some really nice things on albums. They give a really nice atmosphere when they play, and I always enjoy seeing them.”
But Plant and Page said that “they never toured with, shared a stage with or listened to any of Spirit’s music during these brief encounters,” according to court documents. The members of Spirit recalled things differently, however. They claim to have talked with members of Led Zeppelin backstage and that the bands had performed one after the other at two festivals.
Whatever the case, it’s difficult to deny that Page and Plant had access to the song in question. So the entire music plagiarism trial comes down to whether the similarities between the songs constitutes a “substantial similarity.”
2) Substantial Similarity
Wolfe’s legal team must show that the average listener would be able to tell that “Stairway” has been copied from “Taurus.” The more elements that the two songs have in common, the more likely they are “substantially similar.” In other words, “sounding alike” is not plagiarism; there must be many similar elements that combine to create plagiarism.
It is important to note that the lawsuit only accuses Zeppelin of copying the introduction of “Taurus,” not the entire song. So when we’re talking about “Stairway” being lifted, it’s really only 30 seconds of the Stairway intro we’re talking about.
“Taurus” begins with 45 seconds of orchestral music, lead by ominous strings and a sprinkling of jazz flute. This is followed by 15 seconds of fingerpicked classical guitar, with the bass notes descending chromatically (i.e. a half-step at a time) from A to F. This fingerpicked section repeats itself before the song moves to a different musical part. It’s these 30 seconds that are the subject of the music plagiarism claim.
“Stairway” has that same chromatic descent, and a similar feel of spare, slowly paced guitar. The phrasing (i.e. how the guitar is played) of “Stairway” and “Taurus” is similar. However, plenty of songs start in A minor and descend from there (“Babe I’m Gonna Leave You” and “While My Guitar Gently Weeps” both do the same). Further, “Stairway” builds and resolves in a way that “Taurus” does not. So what we’re left with is the first several guitar notes on “Stairway” resembling the first several guitar notes in “Taurus”.
Is the above “substantially similar”? The courts have stated that in order to be so, the copying must be egregious enough that it violates the copyright in the other song.
That is not easy to say with confidence here. Vanilla Ice’s “Ice Ice Baby” and Queen’s “Under Pressure”? That’s easy. The Beach Boys’ “Surfin’ USA” and Chuck Berry’s “Sweet Little Sixteen”? Ditto. The Offspring’s “Get a Job” and the Beatles “Ob-La-Di, Ob-La-Da”? You bet. Even The Stones’ “Has Anybody Seen My Baby” and KD Lang’s “Constant Craving” is clear.
The comparison between “Taurus” and “Stairway” is not so clear. Starting a song in A minor is not copyrightable, neither is a descending chord pattern.
The fact is, many songs remind you of a song you’ve heard before, and that’s what makes them catchy. CBC Radio examines these similarities daily with their “Distant Cousins” feature, which apparently has listeners sending in dozens of songs a week that sound “substantially similar.”
“Stairway” contains a brief segment that sounds similar to “Taurus,” but for me, it is not egregious and therefore not substantially similar enough to constitute music plagiarism.
“Bring it On Home” – Concluding Thoughts
“Taurus” is an interesting song at best; a short instrumental that I might put on while meditating. It’s fine background music. “Stairway” is monolithic. A song that has connected with millions of people around the world. A crowning achievement in rock and roll songwriting. If it’s overplayed, it’s for good reason. If “Taurus” is underplayed and underappreciated, it’s for good reason as well. It’s not an exceptional song. As Zeppelin biographer Mick Wall notes, if Page was influenced by the chords from “Taurus”, “what he did with them was the equivalent of taking the wood from a garden shed and building it into a cathedral.”
Now, as my band mate pointed out, you still have to pay for the wood from the garden shed. Which is where I think Page and Plant should have settled this out of court years ago, for an undisclosed amount. It might not have included songwriting credit, and instead just a dollar amount. It would have avoided all the bad press and lawsuits. But we’re past that point now.
I don’t think the jury should come back with a finding of music plagiarism in this case. Part of me wishes they would, as the underprivileged kids will benefit and Zeppelin can afford it. But that’s not how the law works. The reality: if “Stairway” constitutes music plagiarism, so do half the songs on radio today.
My guess as to what really happened: Page heard the song at some point, maybe it was backstage in the dressing room waiting to go onstage, and it seeped into his subconscious. Then when he was feeling inspired a year or two later, he sat down and it came from his fingers. I don’t think it was intentional, but intent doesn’t matter in a plagiarism case. Only outcome.
For me, the outcome here is not plagiarism, but inspiration.