Winning a US copyright suit not as easy as you thought – lessons from Blackbeard, Led Zeppelin and Katy Perry

By Scott Sidley
Intellectual Property Patents & Trade Marks

In brief 3 min read

In the world of music, proving copyright infringement just got harder – which is only one major issue arising from recent US copyright litigation. We give you an update on these significant cases, and their implications for copyright owners and artists, bearing in mind that the Australian position differs in a number of ways.

Key takeaways

  • US states can infringe your copyright without exposure to liability – the Supreme Court has confirmed state immunity from private claims of copyright infringement.
  • When bringing a claim for copyright infringement, proving an alleged infringer had greater access to your prior work no longer reduces your burden of proving the infringement. Claimants need to focus their arguments on proving similarity, rather than level of access.
  • Common musical sequences and elements are not protected outside of virtually identical copying.

Who in your organisation needs to know about this?

Media lawyers, members of the music industry and those bringing or defending copyright claims in the US.


Is North Carolina a constitutionally sanctioned pirate? In proceedings between the state and a video production company, the US Supreme Court has confirmed states have immunity from private claims of copyright infringement.

As we reported previously in What does Blackbeard have in common with North Carolina?, the 11th amendment of the United States Constitution allowed the state of North Carolina to use photographic and video materials from a salvage operation to recover Blackbeard's ship, without exposure to liability. Justice Breyer provided an illustration of the implications: would it be acceptable for Disney to sue anyone, including a state, for unlicensed screening of its movies? According to the Supreme Court, the answer is no.

Copyright owners in the US need to know that fighting a state over copyright infringement is a battle they will not win – in a courtroom, at least.

Under the 14th amendment, it is open to Congress to pass legislation to hold states accountable to copyright laws. Could pressure from lobbyists rise to mutiny levels such that Congress intervenes? Or will states continue to raise their masts in defiance of copyright owners? For now, the tide favours the states.

Led Zeppelin

Led Zeppelin have won their appeal, with the reinstatement of a jury verdict that the band did not copy the opening guitar riff for 'Stairway to Heaven' from Spirit's song 'Taurus'.

The Ninth Circuit Court of Appeals appears to have done away with the 'inverse ratio rule', which requires a lesser amount of similarity where the alleged infringer has had greater access to the prior work. The court held that the rule is no longer appropriate in modern times, when songs are so readily available on platforms such as YouTube and Spotify, noting that copyright law does not provide more popular work with stronger protection. This is a win for smaller artists. Pending adoption in other US courts, music will now receive equal copyright protection, regardless of exposure.

There may be an appeal to the US Supreme Court or Full Circuit Court – keep your guitars and ears tuned.

Katy Perry

Katy Perry has successfully appealed a decision that her single 'Dark Horse' infringed Christian rapper Flame's copyright.

Perry won the appeal in the United States District Court for the Central District of California, on the basis that the note sequence allegedly copied was 'not a particularly unique or rare combination'.

While it looks like a win for one of the world's biggest pop stars, this is another win for all songwriters. Quoting the judgement from Zeppelin, the court considered the note sequence foundational 'building blocks' of music that should be available to everyone.

Flame plans to appeal the decision.

Perry is also defending a claim in Australia for alleged infringement of a 'KATIE PERRY' trademark. We look forward to providing an update on those proceedings.