Copyright Developments

First, the Ninth Circuit en banc panel found that the deposit copy of “Taurus” controlled the scope of rights at issue in the case.  Pursuant to the 1909 Act, Wolfe’s rights in the unpublished composition were limited by the deposit copy, which consisted of one-page of sheet music.  Because the deposit copy limited the scope of the work’s copyright, the panel found that the lower court did not err in rejecting Skidmore’s request to play “Taurus” sound recordings “that contain further embellishments” from the deposit copy or to admit the sound recordings for the purpose of analyzing substantial similarity.

Second, the panel abrogated the widely-criticized inverse ratio rule within the Ninth Circuit, joining the majority of circuit courts who have steered clear from adding such a rule to their copyright jurisprudence.  Prior to the Skidmore decision, the Ninth Circuit adhered, albeit inconsistently, to the inverse ratio rule, whereby a plaintiff who was able to make a strong showing on access could provide a less strong showing on substantial similarity to make out its infringement claim.  In Skidmore, the Ninth Circuit held that “[b]ecause the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties,” it “abrogated the rule in the Ninth Circuit and overrule[d] [their] prior cases to the contrary.”  Accordingly, the en banc panel found that the district court did not err in refusing to provide a jury instruction on the inverse ratio rule.

While the long-term impact of the Ninth Circuit en banc opinion remains to be seen, it has already affected other copyright cases.  In July of 2019, the court in Griffin v. Sheeran—a Southern District of New York case involving allegations that pop star Ed Sheeran’s “Thinking Out Loud” infringes the composition “Let’s Get It On”—put off the jury trial until the Ninth Circuit en banc panel returned its decision.  Following the March 2020 opinion, the Griffin court limited plaintiffs to comparing “Thinking Out Loud” with the deposit copy of the “Let’s Get It On” composition.

The Ninth Circuit’s en banc opinion is reported at Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020), and the Supreme Court’s denial of certiorari is reported at 2020 U.S. LEXIS 4591 (2020).