20 June 2014 by

Stairway to Heaven – will Led Zeppelin look to laches for a defence?

Led Zeppelin are no strangers to legal action – previous claims for breach of copyright have led to a sharing of song-writing credits on a number of their songs, including “Whole Lotta Love” and “Dazed and Confused”.   So it may not come as a surprise that their most famous song, “Stairway to Heaven” (released in 1971) has recently become the subject of fresh claims for breach of copyright.  Randy California, the late guitarist of 60s rock outfit Spirit, has long since claimed that the opening guitar riff in “Stairway to Heaven” is actually lifted from their 1968 song, “Taurus”, and proceedings have now been issued in the USA, in the lead up to the re-release of Led Zeppelin’s fourth untitled album, usually referred to as Led Zeppelin IV (and on which “Stairway to Heaven” appears).

The representatives of Spirit are seeking to obtain an injunction to delay the release of Led Zeppelin IV, a song-writing credit, and damages for infringement of copyright.  If the latter claim is successful then the group would receive a portion of the substantial publishing and performance royalties the song has generated, reportedly in excess of $550m, and whilst digital re-masters of Led Zeppelin’s other albums were re-released on 6 June 2014, the result of the proceedings is that re-release date for Led Zeppelin IV remains to be confirmed.

Whilst the proceedings have been issued outside the UK jurisdiction, some of the legal issues that arise are relevant to how any such claim might be addressed here in the UK.  In particular, it has been suggested that Led Zeppelin may rely on the doctrine of laches as a defence, which is legal doctrine available in both jurisdictions.  In essence, it is a time related defence affording the defendant a complete defence in circumstances where the claimant has unduly delayed making the claim.

There are two important points to consider when assessing whether or not the doctrine of laches is available:

  •  Is the claim of a type to which the doctrine of laches can be applied?  

The Limitation Act 1980 provides statutory time frames within which certain claims must be issued and its purpose is to prevent potential claims existing ad infinitum.  If the claim being made does not have a statutory time period or the remedy sought is only available in equity (for example a claim for an injunction or order for specific performance) then the doctrine of laches is the only defence available that relates to time and delay on the part of the claimant.  In Led Zeppelin’s case, the claim for damages for the infringement of copyright has a 6 year limitation period as it is, in essence, a claim for breach of statute arising out of the Copyright, Designs and Patents Act 1988. As such, if Spirit had brought their claims in the UK Led Zeppelin might be able to rely on a limitation defence in respect of the copyright infringement and associated damages.  However, this would not be so when defending Spirit’s claim for an injunction and for a song-writing credit (which would be achieved by obtaining an order for specific performance), and it is here that the doctrine may be deployed to the advantage of Led Zeppelin.

  • Is the test for the doctrine of laches met?

There are two questions that the court will ask in order to establish whether or not the doctrine of laches is available as a defence:

(i)                  Was there undue delay in Spirit making their claims? and

(ii)                Is it unfair to allow Spirit the remedy that they seek because the delay can either be regarded as a waiver of their right to pursue the remedy, or because it would put Led Zeppelin at a disadvantage as a consequence of the delay.

If the test were applied in the English courts then a number of factors will be taken into account, including the extent of and reasons for the delay, the subject matter of the claim, and the extent of the Claimant’s knowledge.  It is of note that in this case, Randy California made public comments about his claims as early as 1997, before he passed away, and it is alleged that the alleged act of infringement would have taken place as early as 1970 when the two bands played at a number of the same festivals; the implication being that the claims could have been brought some time ago.  Whilst the representatives of California’s estate of Spirit have said that the delay in bringing the claims was largely due to a lack of financial resources, the impending release of Led Zeppelin IV (and the undoubtedly significant future revenue that would be generated for the estate if a song-writing credit was awarded prior to its release) would suggest that their timing may have been driven by other factors.

An important general point to note is that the doctrine of laches is an equitable remedy and is the practical application of the maxim “equity aids the vigilant, not the negligent”.  If you believe that there is a potential breach of your intellectual property rights and it is necessary to seek a remedy from the court that either compels the infringing party to stop or to carry out a specific action, then you must take the necessary action without delay.

If you have any questions regarding the above article or require advice on any other intellectual property matter please contact Marc Thurlow at marcthurlow@boltburdon.co.uk or call 020 7288 4768 or Simon Bishop at simonbishop@boltburdon.co.uk or call 020 7288 4797

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