Musicology Expert WitnessA Ninth Circuit panel vacated in part a district court’s judgment after a jury trial in favor of the defendants and remanded for a new trial in a copyright infringement suit alleging that Led Zeppelin copied “Stairway to Heaven” from the song “Taurus,” written by Spirit band member Randy Wolfe.

The jury found that plaintiff owned the copyright to “Taurus,” that defendants had access to “Taurus,” but that the two songs were not substantially similar under the extrinsic test.

Among the issues on appeal was whether the district court abused its discretion by failing to exclude expert testimony on the basis of a conflict of interest.

This copyright case involves a claim that Led Zeppelin copied key parts of its hit “Stairway to Heaven” from the song “Taurus.” Years after Wolfe’s death, the trustee of his trust brought this suit for copyright infringement against the members of Led Zeppelin—Jimmy Page, Robert Plant, John Paul Jones, along with their publishers.

As part of expert discovery, Plaintiff’s attorney deposed Defendants’ expert musicologist. During the deposition it came to light that in 2013 he had conducted a comparison of the “Taurus” and “Stairway to Heaven” recordings for another publishing company.

The musicologist testified that when he was approached by Defendants’ counsel, he informed them that he had already completed an analysis for another publishing company (Publisher A). Defendants’ counsel consulted with Publisher A, which waived any conflict and consented to the musicologist being retained as an expert witness for Defendants. Throughout the deposition, Plaintiff’s counsel objected and requested copies of the musicologist’s communications with Publisher A.

After the deposition, Plaintiff filed a Motion for Sanctions and to Preclude the musicologist from testifying at trial. The district court denied Plaintiff’s motion because it was improperly noticed, over the page limit, and untimely.

Plaintiff argued on appeal that the district court abused its discretion by failing to disqualify Defendants’ expert musicologist or to give a negative inference instruction to the jury because he previously had been hired by Publisher A to compare “Stairway to Heaven” to the original recording of “Taurus.”

U.S. Circuit Judge of the Court of Appeals for the Ninth Circuit Richard A. Paez wrote that district courts have “broad discretion” in making evidentiary rulings, including whether to allow expert testimony.

Judge Paez found that the district court didn’t abuse its discretion when it denied Plaintiff’s request for sanctions against the musicologist and to exclude his expert testimony. Plaintiff’s motion was rejected as untimely and improperly filed. Even if the motion had been timely filed, Judge Paez said that the district court didn’t err in denying the motion because there was no conflict that merited monetary sanctions or exclusion of the musicologist’s testimony.

Plaintiff argued that the musicologist effectively switched sides in this case.

Judge Paez opined that the Ninth Circuit has held that when an expert switches sides, the party moving for disqualification must show that the expert in question has confidential information from the first client.

Here, even if the musicologist switched sides, there was no showing that he possessed any confidential information. Publisher A retained the musicologist to obtain his opinion on two publicly available songs, and he volunteered to share his conclusion with Plaintiff. While he didn’t produce a report from this prior consultation, he did testify that he believed he communicated his opinion by phone to Publisher A rather than in a written report.

Further, Judge Paez held that there was no evidence presented that the musicologist did switch sides. Publisher A didn’t have an interest in this case, and it waived any potential conflict that might arise from having the musicologist testify as an expert for Defendants.

The case was vacated in part and remanded for a new trial.