Category: IP Analytics

Which Law is Relevant? – Lessons from Led Zeppelin’s “Stairway to Heaven” Copyright Case

Ex post facto law, the retrospective application of legislation, is not applied in a number of jurisdictions, including New Zealand.  Because laws do change however, it is important to understand which laws were in force and are relevant to the question you are asking.  The recent outcome of the long running copyright dispute over Led Zeppelin’s “Stairway to Heaven” highlights this.

 

“Stairway to Heaven” Case

The rock band Led Zeppelin has been in a long running copyright dispute over the acoustic guitar intro to their song “Stairway to Heaven”.

The case, originally brought in 2014 by the estate of the band Spirit, asserted that the “Stairway to Heaven” intro had been copied from Spirit’s earlier instrumental work “Taurus”.  In 2016, a jury found in favour of Led Zeppelin, stating that they did not steal the intro, and that their work was original.

However, in 2018, a panel of judges ordered a new trial on the basis that the judge in the 2016 trial had given the jury incorrect instructions, in particular by not allowing them to hear sound recordings of the “Stairway to Heaven” and “Taurus” works for comparison.

The reasoning behind not allowing the sound recordings was that, at the time that the respective works were created (1971 for “Stairway to Heaven”, 1968 for “Taurus”), the US Copyright Act 1909 was in force and the case should be heard according to that law.  Under the requirements of the 1909 Act, copyright only covered sheet music, not sound recordings.  In was not until later in the 1970s that copyright law in the US was extended to include sound recordings.

The 2018 decision to order a retrial was subsequently appealed with a request for a larger panel of judges to rehear the case.  This was heard by a panel of 11 judges earlier this year (March 2020).  They overturned the 2018 ruling, reaffirming that the jury had been instructed appropriately in the 2016 case & that the jury’s decision (in favour of Led Zeppelin) stood.

The case was then taken to the Supreme Court (the highest court in the United States), but a few days ago, the Supreme Court declined to take it up, effectively handing final victory to Led Zeppelin.

 

Applying this Lesson to Effective IP Management in New Zealand

The “Stairway to Heaven” case highlights the importance for businesses to understand which laws were in force at the time of any relevant activities relating to their business strategy, including IP management.

For example, up until a few years ago, patents in New Zealand were prosecuted under the Patents Act 1953.  The New Zealand Patents Act 2013 (which came into force in September 2014), however, introduced many reforms to New Zealand IP legislation.  Amongst other changes, the criteria for patent examination was extended from local novelty only, to absolute novelty, inventive step and utility.

Many patents prosecuted under the old 1953 Act will still be in force and may be relevant for businesses.  For example, if you are pursuing validity analyses of patents of interest, whether for due diligence on the value of patents you wish to license or acquire, or attempting to invalidate a competitor’s patent, it is vital to understand which Act would be applied to test the strength of a patent of interest.  The introduction of the new Patents Act 2013 changed the criteria for patentability significantly.

It is important in business management generally to appreciate the dynamic nature of the legal landscape.

Alistair Curson

 

References

AJ Park. (2014, September). “New Zealand’s new Patents Act 2013: The key differences between the Patents Act 1953 and the new Act”. Retrieved October 09, 2020, from: https://www.ajpark.com/assets/Uploads/New-Zealands-new-Patents-Act-2013-The-key-differences-between-the-Patents-Act-1953-and-the-new-Act.pdf

Bienstock R. (2020, October). “Led Zeppelin emerge victorious in long-running Stairway to Heaven copyright battle”. Retrieved October 08, 2020, from: https://www.guitarworld.com/news/led-zeppelin-emerge-victorious-in-long-running-stairway-to-heaven-copyright-battle

Curson AD. (2018, November 20). “Tech Software and Intellectual Property Protection”. Retrieved October 09, 2020, from: http://adcpatentsearch.co.nz/IP_Analytics_NZ/?p=79

Dixon G. (2014, August 12). “Patent law change in New Zealand – Five reasons to act now!”. Retrieved October 09, 2020, from: http://www.shelstonip.com/news/patent-law-change-in-nz-five-reasons-why-now-is-the-time-to-act/

Kim A. (2020, March 11). “Led Zeppelin wins major copyright battle for ‘Stairway to Heaven'”. Retrieved October 08, 2020, from: https://edition.cnn.com/2020/03/10/entertainment/led-zeppellin-stairway-heaven-lawsuit-trnd/index.html

New Zealand Bill of Rights Act 1990, s26. Retrieved October 08, 2020, from: http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225528.html

New Zealand Interpretation Act 1999, s7. Retrieved October 08, 2020, from: http://www.legislation.govt.nz/act/public/1999/0085/latest/DLM31471.html

New Zealand Sentencing Act 2002, s6. Retrieved October 08, 2020, from: http://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135540.html

Reed R. (2019, June 11). “Led Zeppelin’s ‘Stairway to Heaven’: Appeals Court to Review Lawsuit Decision”. Retrieved October 08, 2020, from: https://www.rollingstone.com/music/music-news/led-zeppelin-stairway-to-heaven-lawsuit-review-846617/

Ryu J. (2020, October 05). ” Led Zeppelin wins copyright battle after U.S. Supreme Court declines to hear case”. Retrieved October 08, 2020, from: https://www.usatoday.com/story/entertainment/music/2020/10/05/led-zeppelin-stairway-heaven-copyright-lawsuit-supreme-court-ruling/3624384001/

Sisario B. (2020, March 09). “Led Zeppelin Prevails in ‘Stairway to Heaven’ Appeal”. Retrieved October 08, 2020, from: https://www.nytimes.com/2020/03/09/arts/music/led-zeppelin-lawsuit-stairway-to-heaven.html

United Nations. “Universal Declaration of Human Rights”. Retrieved October 08, 2020, from: https://www.un.org/en/universal-declaration-human-rights/

Wikipedia. (2020, September 28). “Ex post facto law”. Retrieved October 08, 2020, from: https://en.wikipedia.org/wiki/Ex_post_facto_law

Wikipedia. (2020, October 07). “Supreme Court of the United States”. Retrieved October 09, 2020, from: https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

Expanding the Scope of Free Global Intellectual Property Databases

The capabilities and scope of freely available global intellectual property (IP) databases are constantly growing.  Recently, TMview and PubChem announced updates that widen their capability for IP search and analysis from various global jurisdictions.

 

IP Australia Joins TMview

IP Australia has joined TMview, a free global online tool from the European Union Intellectual Property Office (EUIPO) that facilitates word and image trade mark searching from the 74 participating offices around the world.  Over 1.6 million Australian trade marks have now been added to the database.

A range of IP right, bibliographic and legal status information can be searched and investigated, including the words and images constituting the mark, the goods and services protected, ownership, legal status and registration date.  Access to details at the office of origin is also provide.

This news follows closely the announcement that the EUIPO had launched improved versions of both its TMview (trade marks) and DesignView (designs) databases.  The improvements include a wider set of search criteria and abilities to fine tune queries, a function to compare trade marks and designs side-by-side, and the capability to export to PDF, Excel and Word formats.

 

PubChem Chemical Search Enhanced with WIPO Chemical Structures

PubChem is the National Institutes of Health (NIH) open chemistry database that provides the world’s largest collection of freely accessible chemical information.

The World Intellectual Property Organisation (WIPO) has an extensive searchable database of IP-related chemical data, built through a collaboration with German cheminfomatics software company InfoChem.  This dataset is made available through WIPO’s patent database PATENTSCOPE.

WIPO has recently contributed over 16 million chemical structures to PubChem.  These can be searched within PubChem by name, molecular formula, structure, and other identifiers.  Information including chemical and physical properties, biological activities, safety and toxicity information, patents, and literature citations can be retrieved.  PubChem users also have access to relevant patent information via direct links back to PATENTSCOPE.

 

Overview

These developments expand and advance the provision of freely available intellectual property information.

For those with an interest in the Australian market, who wish to understand the IP landscape there, the provision of Australian trade marks on TMview improves their abilities to conduct such analyses.

Similarly, for anyone working in the chemistry and related fields, WIPO’s contribution to PubChem is a welcome enhancement for accessing comprehensive patent information in such disciplines.

Alistair Curson

 

References

European Union Intellectual Property Network. (2020, April 02). “News: The EUIPO has launched improved versions of TMview and DesignView”. Retrieved April 09, 2020, from: https://www.tmdn.org/tmview/#/tmview/news

European Union Intellectual Property Network. (2020, April 06). “News: Australia joins TMview”. Retrieved April 09, 2020, from: https://www.tmdn.org/tmview/#/tmview/news

European Union Intellectual Property Network. “TMview”. Retrieved April 09, 2020, from: https://www.tmdn.org/tmview/welcome#/tmview

European Union Intellectual Property Network. “Tools”. Retrieved April 09, 2020, from: https://www.tmdn.org/network/iptools

InfoChem. (2019). “InfoChem”. Retrieved April 14, 2020, from: https://www.infochem.de/

IP Australia. (2020, April 07). “IP Australia joins global trade marks database TMview”. Retrieved April 09 , 2020, from: https://www.ipaustralia.gov.au/about-us/news-and-community/news/ip-australia-joins-global-trade-marks-database-tmview

PubChem. “Explore Chemistry”. Retrieved April 14, 2020, from: https://pubchem.ncbi.nlm.nih.gov/

PubChem Blog. (2020, March 25). “Integration of WIPO’s PATENTSCOPE data with PubChem”. Retrieved April 14, 2020, from: https://pubchemblog.ncbi.nlm.nih.gov/2020/03/25/integration-of-wipos-patentscope-data-with-pubchem/

World Intellectual Property Organisation. (2020, March 25). “WIPO Contributes Millions of Searchable Chemical Formulas to Database at U.S. National Institutes of Health”. Retrieved April 09, 2020, from: https://www.wipo.int/patentscope/en/news/pctdb/2020/news_0002.html

World Intellectual Property Organisation. “Patentscope: Chemical Compounds Search”. Retrieved April 14, 2020, from: https://patentscope.wipo.int/search/en/chemc/chemc.jsf?new=true