The Legal Loophole That May Leave Some of Rock’s Greatest Riffs Up for Grabs

To the frustration of Malofiy, the judge said it was irrelevant whether the songs’ album recordings sounded alike. What mattered was whether Page had lifted the Spirit song as it had been written on a single page of music submitted to the U.S. Copyright Office in 1967. The Taurus “deposit copy,” as it’s called, is a spare document handwritten by a record company scribe who listened to the record and then distilled it into only 124 notes of piano music. The reverse engineering was required to comply with U.S. law, which before 1978 allowed songs to be registered only via sheet music “deposited” in Washington. When a pianist performed the Taurus deposit copy for jurors earlier in the trial, it didn’t sound much like the Spirit record, let alone Stairway.

In a bind, Malofiy turned the issue on its head:

“I’d like to pull up Exhibit 2708, which is the Stairway to Heaven deposit copy,” he told the court. The sheet music appeared, projected on a screen between Page’s witness stand and the jury box. “Can you point to where on the deposit copy of Stairway to Heaven it indicates the solo?” Malofiy asked, referring to the electric guitar finale that’s considered one of Page’s crowning achievements.

“I’ll have to have a look,” Page said, then scanned the first bit. “Um, I think you need to scroll down one more.” The second folio came up on the screen. “Please scroll one more,” he said as more music appeared. “Please, one more,” he said again as the fourth and final bit came up. “OK. That’s it. I’ve read it.”

“You would agree that there’s no solo on the deposit copy … of Stairway to Heaven, which was deposited with the office?”

“Yeah, we—I agree with that. It’s not in there, no,” Page said.

Malofiy then pointed to the first measure. On the record, Stairway begins with a finger-picked introduction—one of the most recognizable musical passages of the past half-century, mimicked by millions of aspiring guitarists. That iconic intro, Malofiy said, “That’s not represented in the deposit copy?”

“No,” Page said. “You’re correct.”

Sitting in the courtroom that day, I couldn’t believe what I was hearing. Were some of the most famous passages in rock history really not protected by copyright? And did this also apply to any number of other songs whose deposit copies were certainly equally lacking? I felt as if someone had dropped $100 bills on the ground. Countless unregistered bits of song—guitar solos, bass lines, horn parts, background vocals—could be sitting out there exposed to unscrupulous financial exploitation. Ring tones, TV ads, film soundtracks—or even entire new songs—could be made and sold from these orphaned riffs.

Something had to be done. I would pick up these musical $100 bills, these bits of song, and for safekeeping stitch them into a composition that I would copyright as mine.

I would call it Purple Hotel Sympathy for the Stairway to Run.

Led Zeppelin won at the 2016 trial, but the matter isn’t resolved, and the stakes seem to have actually grown. Malofiy appealed, and in September, a three-judge panel on the 9th U.S. Circuit Court of Appeals in San Francisco ordered a Stairway do-over trial for procedural reasons. At the heart of the judges’ decision was a potentially industry-changing declaration: For pre-1978 unpublished songs, the deposited sheet music “defines the scope of the copyright.”

That ruling set off second appeals by both sides. Led Zeppelin asked for the original verdict to be upheld. Malofiy asked the entire appeals court, and not only three judges, to decide on the narrow issue of deposit copies. In early June, the San Francisco appeals court voted to have a rare 11-judge panel rehear the case in September, suspending the earlier appeals decision. The only topic on which the court has asked the parties for briefs so far is the primacy of deposit copies. The litigation has broader implications, undergirding a high-profile New York case in which plaintiffs are demanding more than $100 million for the alleged theft of Marvin Gaye’s Let’s Get It On for Ed Sheeran’s hit Thinking Out Loud .

The irony is there may be no winning outcome for Led Zeppelin. As Page’s testimony showed, the harder his lawyers push for strict readings of the copyright sheet music, the more they weaken the protection for Stairway. They’re going all-out, too. The legal team for the band and its publisher, Warner Music Group Corp., wrote in a December filing about “the primacy of deposited sheet music” as a bedrock of their industry and how “contracts are entered into in reliance on the certainty that a copyright protects the copyrighted work.”

Their arguments have implications for anyone who made music before 1978. My mission was to learn what was at stake for the old-timers—and also to see the registrations for Stairway and the other classic hits I hoped to weave into my own composition. I headed to Washington.

I kid you not, a visit to the card-catalog room at the U.S. Copyright Office can be deeply moving. An online database lists copyrights registered starting in 1978, but earlier records are here on index cards. All songs, books, plays, poems, fabric patterns, photos, movies—pretty much every product of creativity that your parents and grandparents may have seen, read, or heard—have a card that lists its registration number, date, claimant, title, and more. If it’s not here, under U.S. law it’s almost as if it never existed. (There’s an electronic version, but it’s in an experimental stage.) Other countries have their own systems, but songwriters from around the world, including Page and Robert Plant, Led Zeppelin’s singer, routinely register their works in the U.S. and benefit from the relatively clear lines established by its legal system.

Copyright documentation reveals itself in layers. I used the catalog to order up other records from deeper in the archives, such as original registration papers and the deposited sheet music, which is largely stored off-site. Interpreting the records requires a basic understanding of the law. For example, pre-1978 songs could be registered as “published,” if the sheet music had been sold to the public, or “unpublished,” as was the case with Taurus and the earliest version of Stairway. New arrangements can be registered, too, such as the 1979 disco Stairway to Heaven I found, registered, as are all versions of the song, under Page’s and Plant’s names.

To my delight, I mostly got what I was looking for: a sampling of deposit copies representing the canon of classic rock. Yet it boggled my mind that the sparse notes of this sheet music could contain the only protected portions of these musical monuments. My excavations dug up glaring gaps between the songs you know by heart and their initial copyright deposit copies:

• The Eagles’ Hotel California has two 1976 registrations, neither of which has the plucked guitar intro or the guitar solos from the studio version. A 1977 published version added a piano vocal arrangement with guitar chords. A published version from a 1978 songbook has the intro but still lacks the guitar solos.

• Lynyrd Skynyrd’s Free Bird , the album version of which runs more than nine minutes, has an initial deposit copy of only eight lines, registered on Dec. 5, 1973. It contains only lyrics, melody, and basic chords. The only other registration I found was a four-page published piano arrangement from 1975.

• Born to Run by Bruce Springsteen was registered as a four-page composition on Sept. 25, 1975, with no trace of its guitar intro or the saxophone solo. Springsteen never registered published sheet music for his most famous song.

• Riders on the Storm , the Doors song registered on April 2, 1971, is, like all these others, just chords, lyrics, and melody. There’s no notation of Ray Manzarek’s Fender Rhodes electric piano, which mimics the sound of falling rain. No published version appeared in my searches.

Did the gaps I found mean all those solos were up for grabs? It depends. Making a buck off such tunes carries risk, cautions Peter Jaszi, a professor emeritus at American University Law School in Washington who served on a Library of Congress committee convened in 1993 to study copyright registration and deposit issues. “No one should assume that solos not reflected in the deposit copies of sheet music are necessarily in the public domain,” he says. At the same time, no one should assume they aren’t, says San Francisco-area copyright lawyer Mark Jaffe. “Though it’s not fair, at the time you couldn’t submit the recording as the embodiment of the composition,” he says.

And consider this caveat: A song doesn’t need to be registered to be technically copyrighted. Selling sheet music and marking it with “copyright” or a ©, as the above bands surely did, counts as copyrighting a work, in part because it gives public notice not to plagiarize it. But in court, registering a song gives a songwriter the protection that counts: the right to sue for infringement and claim damages.

Anyone willing to exploit that wiggle room, though, could attempt to profit. In the Stairway case, Malofiy claimed that if Led Zeppelin won the deposit-copy argument, a generation of songwriters would face “dire consequences.” To Malofiy’s surprise (and mine), the Led Zeppelin lawyers’ response to his warning invoked a copyright revolution even more radical than the one I’d been pursuing for my own composition.

A screenwriter couldn’t have conjured more fitting circumstances under which Malofiy would receive Led Zeppelin’s response in the Stairway appeal. When the filing came through in December, he was en route to London to buy a piece of Stairway history. An auction house was selling the so-called Stairway to Heaven console, the recording equipment through which Page recorded the song’s solo. (The auction house was named Bonhams, Zep fans.) Malofiy wanted it for a studio he plans to build with earnings from a $44 million verdict and settlement he won in October in another music dispute, involving writers of the Usher song Bad Girl .

Skimming through the filing on his phone, he couldn’t believe what he saw. “They blew their f---ing foot off,” Malofiy said when I reached him by phone at his London hotel.

Led Zeppelin’s lawyers argued it was irrelevant that bits of Stairway didn’t show up in the deposit copy, because they were still protected. Why? Because the law that went into effect in 1978 had a provision that said any unregistered works automatically became copyrighted on that date. They were technically right. But the legislative record shows that line of law was intended as a way to start the clock ticking on copyright expiration for, say, a book manuscript that had been tucked away in a drawer. Instead, Led Zeppelin’s lawyers applied the concept to instrumental solos as mini compositions.

“The guitar solo in the studio recording of Stairway to Heaven is not included in the deposit copy, but is plainly original and protectable material,” they wrote in the Dec. 10 filing. “[T]he guitar solo became protected by federal copyright on the earlier of January 1, 1978, or the first public distribution of copyrighted sheet music with the guitar solo.”

I noticed two things. First, the band’s own lawyers weren’t sure if Led Zeppelin had ever published Stairway sheet music with the solo. Second, to defend the Stairway solo from poaching, they were essentially claiming that every old unregistered solo by every musician ever recorded had become copyrighted in 1978—and that this occurred without any registration. Were that true, every jazz and rock album from most of the 20th century was filled with short compositions by stars and session musicians that were now copyright protected (and owned by whom, it’s not clear). More to the point here, wouldn’t Taurus be fully protected by much more than its paltry deposit copy?

Malofiy definitely thought so, and he declared that he finally had Led Zeppelin cornered. He didn’t win the recording console at Bonhams (the final bid of more than $142,000 had been too high), but he was practically bouncing off his hotel room walls with joy because of Led Zeppelin’s new argument. “By virtue of their stupid f---ing logic, the whole thing of Taurus is afforded protection,” Malofiy said. “I can’t believe they fell into that bear trap.”

It was time to complete my own song, which, thanks to information uncovered in the Copyright Office excavations, needed a few adjustments.

It turned out I couldn’t use the Stairway intro, because even though it had been missing from the brief, “unpublished” deposit copy that Page had examined on the stand, I’d found that fingerpicked portion in the longer, subsequent “first” deposit of published sheet music. Both versions, however, lacked the electric guitar solo from the end of the song. Because the 1909 law says initial deposits need to be “complete copies,” I would take the solo as my own. In fact, as far as I could tell, the solo wasn’t in any of the 14 versions registered over the decades.

Purple Haze by Jimi Hendrix was a close call. Neither of the first two registered versions from 1967 had Hendrix’s instantly recognizable ascending and descending riff played at the start and midpoint of the song. But a version registered in 1980 from a book of tablature for guitarists appeared to close the loop, so that was out. The Rolling Stones’ Sympathy for the Devil was also out. Even though the original 1968 deposit copy lacks Keith Richards’s solo, the song’s publishing company, Abkco Music & Records Inc., submitted the record itself to the Copyright Office as a published version of the song after the new law went into effect in 1978, a presumed bulletproofing from which others should learn.

That left rich, usable material from the Eagles, Springsteen, Lynyrd Skynyrd, and the Doors. My new song was called Free Hotel Riders on the Stairway to Run.

The two key ingredients: the solos I’d identified as being at risk and humor (because I didn’t want to come off as an actual thief). In a first attempt, I recorded the solos on kazoo, then layered them over generic drum beats on Apple’s GarageBand app. An unfortunate audience in the office informed me, though, that no recognizable tunes were discernible. My guitar-playing days long behind me, I turned to a sympathetic Bloomberg editor, Ross Larsen, for help. Ross can play. I stitched his versions of the solos into a Franken-song with the public-domain backing tracks on GarageBand. For lyrics, I gathered well-known (but not copyright-registered) phrases from live recordings and had a Stephen Hawking voice generator speak them: “Does anyone remember laughter?” during the Stairway section, “What song is it you want to hear?” for Free Bird, and Springsteen’s “One, two, three” countdown just before the Born to Run sax solo, which in our case Ross played on guitar.

As anticipated, the song isn't very good, other than my colleague's fine guitar work. In the end, I didn't attempt to copyright my creation; that seemed a bit much. And I plan to capitulate instantly to any legal challenges, as a purpose of the exercise was to preserve these snippets for their rightful owners.

A Washington co-worker hit the archives again and came up with more at-risk riffs, from the likes of Donna Summer, Marvin Gaye, Carlos Santana, and the Five Stairsteps. This exercise in musical archaeology had a few purposes (other than satisfying curiosity). One, to show how ill-equipped U.S. copyright law is to govern the business of creativity. Two, to show what's at stake with real songs by real composers if the highest courts define the oldies' copyright protection merely by the skimpy sheet music.

What happens next is in the hands of the courts. Malofiy and the plaintiffs in similar cases are hoping for a compromise whereby the old sheet music is used as a blueprint for a song and musicologists, who already have a role interpreting deposit copies for juries, can use original recordings to flesh out the protected material. Such an approach could, in the long run, be good for Led Zeppelin, too, as the band’s tear-down of Taurus has exposed how vulnerable its own legacy is.

Which is why the final minute of testimony in the Stairway trial three years ago was, in retrospect, the most important. It was a Tuesday afternoon, and Page was on the stand being cross-examined by Malofiy, who at that point had run out of allotted time.

“One last question,” Malofiy asked. “If someone took the intro to Stairway to Heaven, would you sue?” The judge told Page he didn’t have to answer. —With John Voskuhl