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Why ‘Stairway to Heaven’ Lawsuit Poses ‘Uphill Battle’ for Plaintiff

“I think it’s less than 50 percent” that Michael Skidmore will prevail in copyright infringement case against Led Zeppelin, entertainment attorney offers

The man suing Led Zeppelin for copyright infringement over their iconic song “Stairway to Heaven” is going to have a tough time proving his case in court, according to one legal expert.

Entertainment attorney James Sammataro, managing partner of Stroock & Stroock & Lavan’s Miami office, told TheWrap that Michael Skidmore will face “an uphill battle” and “a steep hurdle” as he tries to prove that the classic 1971 tune infringes on the 1968 Spirit song “Taurus.”

Led Zeppelin is being sued by Skidmore, trustee of the Randy Craig Wolfe Trust, who claims that “Stairway” infringes on the earlier song. (Randy Craig Wolfe was the birth name of Spirit frontman and “Taurus” author Randy California, who died in 1997.)

Sammataro told TheWrap, “I definitely think there’s a hint of familiarity [between the two songs] to a layman’s ears.” And Zeppelin opened for Spirit on one of the former’s early tours, meaning that there was a decent chance that Jimmy Page and his bandmates had heard “Taurus.”

But, Sammataro told TheWrap, that doesn’t necessarily tilt the case in Skidmore’s favor. Sammataro cautioned that it isn’t a matter of proving whether the two songs are similar, but rather how similar they are.

“You can copy. Not all copying or parrotry is piracy,” Sammataro said. “You have to take enough [to constitute infringement]. … Is it just that they borrowed a couple of chords and it sounds alike? Did they borrow a progression that sounds similar? Or is this really a wholesale quantitative lifting that’s going to give rise to a claim?”

Venue is another factor working against Skidmore. While the suit was initially filed in Pennsylvania, it has since been transferred to California, specifically to a U.S. District Court in Los Angeles — where, Sammataro said, the threshold for establishing grounds for an infringement case is higher than average.

“It’s a studio-friendly jurisdiction,” Sammataro said. “As a consequence, when there’s had to be a benefit of the doubt, courts have typically erred on the side of big businesses.”

Sammataro is skeptical that the case will make it past the summary judgment phase. Much of that will depend on whether Skidmore’s music expert can pinpoint precise and substantial similarities.

“That will be key,” Sammataro said. “If that all gels together, then I’d say they have more than a puncher’s chance.”

Sammataro doubts that the parties will settle in this case. For one thing, the iconic status of the song, possibly Zeppelin’s most famous, will up the stakes for Page and his bandmates. “There may be a little bit of, ‘I need to protect my integrity and credibility on this one,'” the attorney said.

The financial stakes are also high — as of 2008, the song had generated an estimated $562 million in revenue. The sheer dollar volume itself could make it difficult to reach a settlement, according to Sammataro.

So how much money could be involved if the lawsuit goes forward? According to Sammataro, infringement cases of this nature typically have a three-year statute of limitations period, meaning potential damages would go back to three years before the filing of the complaint. While “Stairway to Heaven” surely isn’t selling like it did in the ’70s, the album containing the track, unofficially titled “Led Zeppelin IV,” was reissued in 2014. And the song is still a prominent presence on classic-rock radio stations’ playlists.

Skidmore’s legal team will also probably argue that the popularity of the song generated peripheral revenues — say, by boosting the group’s profile overall and leading to increased album sales for the rest of its catalog.

“Would I be shocked if they came up with a damages model that was north of $50 million? No,” Sammataro said.

Which doesn’t mean that they’d get that, by a long shot. As Sammataro noted, if he were to be presented with a 10-figure settlement amount, “I would say, ‘See you at trial.'” However, he said, he’d “maybe start listening at $2.5 million.”

And the chances of Skidmore prevailing in the case are still against him, according to Sammataro. While the attorney believes that “ultimately this is a case that comes down to experts,” he added, “I still think its an uphill battle. I think it’s less than 50 percent. I just don’t know where on that less-than-50-percent spectrum.”

Presumably, that will depend not just on whether the songs remain the same, but just how much the same a jury determines them to be.