Skidmore v. Led Zeppelin - Alexander Stewart PHD Declaration - Plaintiff Summary Judgment PDF

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 1 of 22 Page ID
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Francis Malofiy, Esq.

Francis Alexander, LLC
280 N. Providence Rd. | Suite 105
Media, PA 19063
T: (215) 500-1000; F: (215) 500-1005
E: [email protected]
Attorney for Plaintiff
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Glen L. Kulik, Esq. (SBN 082170)

Kulik Gottesman & Siegel LLP
15303 Ventura Blvd., Suite 1400
Sherman Oaks, CA 91403
T: (310) 557-9200; F: (310) 557-0224
E: [email protected]
Attorney for Plaintiff
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UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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MICHAEL SKIDMORE, as Trustee for

the RANDY CRAIG WOLFE TRUST,
Hon. R. Gary Klausner
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Plaintiff,
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Case No. 15-cv-03462 RGK (AGRx)
v.
LED ZEPPELIN; JAMES PATRICK
PAGE; ROBERT ANTHONY PLANT;
JOHN PAUL JONES; SUPER HYPE
PUBLISHING, INC.; WARNER MUSIC
GROUP CORP., Parent of
WARNER/CHAPPELL MUSIC, INC.;
ATLANTIC RECORDING
CORPORATION; RHINO
ENTERTAINMENT COMPANY,
DECLARATION OF ALEXANDER
STEWART, Ph.D IN OPPOSITION
TO DEFENDANTS MOTION FOR
SUMMARY JUDGMENT OR
PARTIAL SUMMARY JUDGMENT
Date: March 28, 2016
Time: 9:00 a.m.
Room: 850
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Defendants.
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DECLARATION OF ALEXANDER STEWART, Ph.D
I, Alexander Stewart, Ph.D, declare as follows:
1.
I am Professor of Music, Director of Latin American and Caribbean Studies,
and Jazz Studies Coordinator at the University of Vermont. I have contributed to numerous
peer reviewed journals and other publications and I am author of a book published by
University of California Press. My work encompasses extensive music transcriptions,
musicological analysis, historical research, and other scholarly activities, particularly in
popular music. I earned a Ph.D. in Music (Ethnomusicology Concentration) from the
Graduate Center of the City University of New York (CUNY) and a Master of Music in Jazz
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and Commercial Music from Manhattan School of Music. During 2006-07, I was a Fulbright
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scholar researching traditional and popular music in Mexico. As an active professional
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musician I have performed with leading musicians in jazz and popular music for more than
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thirty years. I have provided expert opinions and analysis on music copyright matters for over
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twelve years. I have personal knowledge of the facts recited in this declaration and if called
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as a witness could testify competently to such facts.
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2.#
I have been asked to compare the songs Taurus (T) by Randy California of
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the group Spirit and Stairway To Heaven (STH) by Jimmy Page and Robert Plant. I
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downloaded the recordings of T and STH from iTunes and purchased the sheet music to STH
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from musicnotes.com. I was also provided six live versions and a demo of Taurus and
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additional guitar sheet music to STH by attorney Francis Alexander Malofiy. These
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recordings, sheet music to STH, and transcriptions of the relevant parts of the recordings are
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attached to this report.
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3.#
Both songs prominently feature a musical segment that contains substantially
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similar musical expression. This four-measure passage (labeled A in the analysis below)
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appears four times in T at 0:45, 0:58, 1:37, and 1:50. In STH the passage appears six times,
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at 0:00, 0:13, 0:53, 1:06, 1:47, and 2:00. In three of the six appearances in STH (the first,
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second, and sixth), it is heard instrumentally (without vocals). During the last iteration some
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Case No. 15-cv-03462 RGK (AGRx)
DECLARATION OF ALEXANDER STEWART IN OPPOSITION

TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

#:2447
1 arpeggiated variations are heard in the guitar. As discussed further below, live versions of
2 Taurus also feature a similar fingerpicking style in the passages later appearances. The third,
3 fourth, and fifth iterations of the passage in STH contain a vocal part. While T is entirely
4 instrumental and features no vocals, a melodic figure heard in the keyboard during this
5 section bears a similarity to the main vocal melody heard during this passage in STH. For
6 reasons given below, these A passages are clearly the most important musical expression in
7 both works. Before discussing this musical expression further, this report will examine the
8 general characteristics of each song.
9 General'Characteristics#
Key#
Tempo#(BPM)#
Style#
10
Taurus#
A#minor#
~72#
quasi>classical#
Stairway#(Part#I)#
A#minor#
~73#
quasi>classical#
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4.
As can be seen above, both songs are in the same keys (A minor) and are
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performed at nearly identical tempos. The tempos or beats are somewhat fluid in both songs,
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as the guitarist lingers slightly on the final cadence during the passages in question. While
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the tempo of STH eventually accelerates, Part I remains very close to the starting tempo
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throughout. As will be discussed further below, the instrumental textures are also quite
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similar, featuring most prominently acoustic guitar and classical instruments such as flute,
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recorders (a type of end-blown flute), and, in T, strings and harpsichord. In both songs the
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overall mood or style is suggestive of Renaissance-era classical music.
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20 Structure/form
21
Stairway'to'Heaven#
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PART I
0:00 A (instrumental)
0:13 A (instrumental)
0:26 B (instrumental)
0:53 A vocal
1:06 A vocal
1:20 B vocal
1:47 A vocal
2:00 A (instrumental variation)
28 Case No. 15-cv-03462 RGK (AGRx)
DECLARATION OF ALEXANDER STEWART IN

OPPOSITION TO DEFENDANTS MOTION FOR
SUMMARY JUDGMENT

#:2448
1
2
3
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6
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PART II
2:14 vamp 1 (two chord) interlude
2:39 C
2:51 C
3:29 C
3:41 C
4:19 C1 (drums enter)
4:30 C1
5:07 C1
5:18 C1
5:34 Instrumental interlude
5:55 vamp 2 (three chord) guitar solo
6:44 vocal re-enters over vamp 2
11 Section descriptions
A
4 measure verse with descending A minor guitar pattern
B
8 measure bridge
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Vamp 1
2 chord progression (essentially Amin D)
13 C
4 measure verse melody from A section over descending C major
pattern
14 C1
4 measure variation of verse melody over descending C major pattern Vamp
2
3 chord progression (Amin G F)
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#
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Taurus'(studio'version)#
Intro (studio version only)
17 0:00
0:45
A
18 0:58
A
1:12
B
19 1:37
A
1:50
A
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2:04
B
21 #
22 Section descriptions
23 Intro
A
24 B
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atmospheric sustained pads and short figurations in free time

4 measure verse with descending A minor guitar pattern
7 measure bridge
5.
As can be seen in the above analysis, the structure of Part I of Stairway to
26 Heaven is nearly identical to that of Taurus after the introduction. The introduction in
27 Taurus is not set to a steady beat or meter and effectively sets the mood for the song proper

SUMMARY JUDGMENT

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1 that begins a 0:44. The A sections in both songs are four measures long. They are repeated
2 (AA) and separated by a longer B section or bridge. The overall form of both songs thus can
3 be represented as:
4 T
STH (Part I)
5 #
6
6.#
(intro) AABAAB
AABAABAA
It#is#important#to#note#that#every%live#version#and#the#demo#of#Taurus#
begin# with#the#A#sections.#Clearly,#the#intro#was#added#for#the#studio#version#and#was#
not#part#of#the#original#composition.'Therefore,#forms#of#Taurus#and#Part#I#of#STH#
are#identical.#The#only#structural#differences#between#them#are#that#STH# repeats#the#A#
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sections#at#the#end#(still#maintaining#the#AA#structure)#and#the#B# section#in#T#is#one#
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measure#shorter,#i.e.,#seven#measures#instead#of#eight.#
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7.#
After Part I, at 2:14 STH transitions to other material, much of which
13 eventually is supported by the rhythm section (bass and drums). Most of my analysis will be
14 concerned with the first part of STH which contains enough musical content and length to
15 comprise song unto itself (the average popular song is about three minutes in length). Part I
16 is important not only because it is the first music the listener hears (for over two minutes),
17 but also because it contains the weightiest compositional material in the song. It is meant to
18 evoke a complex polyphonic classical texture and in that respect it offers contrast with the
19 later vamps (repeated patterns of two or three chords) and jams (improvised sections). As
20 discussed later in this report in my qualitative analysis, the most memorable and iconic
21 musical materials in STH are heard during Part I.
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23
Specific'Musical'Expression#
'8.
The A sections in both songs are similar on every level: melody, rhythm,
24 harmony, texture, tempo, instrumentation, and fretboard positioning and fingering.

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9.
Harmony. The underlying harmonic structure contains a descending
26 chromatic bass line. While a related structure has a long history in Western music
27 (sometimes referred to as the Lament ground bass), many composers through the ages

SUMMARY JUDGMENT

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1 have found original and creative ways to use this foundational pattern. The setting of the
2 passage in T is exemplar of such creativity and contains original musical expression. By
3 way of comparison I would note as one example that many thousands of songs have been
4 set to twelve-bar blues. Substantial and original expression contained therein remains
5 protectable despite this commonality. As will be seen in my analysis below, both Taurus
6 and STH depart from the traditional sequence in similar and significant ways.
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10.
The chromatic version of the traditional sequence moves through six pitches
8 from the tonic (do) to the important harmonic goal on the fifth degree of the scale (sol). In
9 an unusual variation, both T and STH avoid or defer reaching this important goal on the last
10 pitch of the sequence (the fifth degree or E). In addition to not incorporating the entire six11 pitch sequence (A G# G F# F E), both T and STH use the first five pitches in exactly the
12 same way. As the bass line descends chromatically from A to F#, each pitch is held for two
13 beats duration before lingering on F for four beats in the third measure. In both songs the
14 movement to the final pitch of the sequence, the fifth degree of the scale E, is not arrived at
15 directly and is only suggested near the end of the fourth measure.
11.
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The following is a harmonic analysis of the two passages:
T(1:37)#Amin###Amin/G##
STH# Amin###Amin/G##
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Amin/G#
Amin/G#
Amin/F##
Amin/F##
Fmaj7#
Fmaj7#
D5# E5/A1#
G#A#(E)#
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As can be seen, the harmonies are identical until the final measure. A comparison of the
cadences will be found later in this report.
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12.#
both passages are treated with a nearly continuous eighth-note figuration.
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Rhythm and tempo. Besides the descending chromatic line described above,
13.
Each measure of the four-measure passage contains four beats and each of
these four beats is subdivided in two, for a total of 32 positions or eighth-note slots
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The fourth measure of these patterns contain slight variations. My analysis of Taurus will focus on
the third iteration (1:37) of the A section as representative.

SUMMARY JUDGMENT

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1 (4x2x4). These eighth notes are set to almost exactly the same tempo making the passages
2 durations almost the same in both songs about 13 seconds.
14.#
Guitar Melody. The following table graphically presents these four measures
4 and depicts the steady eighth-note figurations heard in the acoustic guitar in these passages.
5 Since both songs are in the same key, the actual pitches can be easily compared without
6 transposition.
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8
Example(1.(
Acoustic(guitar(themes(in(Taurus(and(Stairway(to(Heaven(
1(
TAURUS(
10
HEAVEN(
11
A(
A(
2(
C( ECB(
C(
E(
3(
A( G#(
4(
C( ECB(
A( B( E(
G#(
C(
1(
G#( G(
B(
2(
3(
C( ECB(
C( E(
G(
C(
4(
G( F#(
C( ECB(
C( F#( D(
F#(
A(
F#(
F#(
12 (
13
1(
TAURUS(
C(
F(
HEAVEN( E( C(
F(
14
15
16
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18
19
20
21
22
23
24
25
26
2(
3(
4(
ECB(
AB(
AB(
A(
F(
C(
F(
E(
C(
1(
F(
A(
2(
3(
D(
D( A(
G( A( A(
B( A( A(
A(
4(
G(
F(
E(
(
(((((15.(((((((Most of the similarities occur during the first 18 notes. The first measure
is
almost identical, the second measure contains only two different pitches, and the first two
slots of the third measure contain the same pitches. With two slight re-orderings, swapping
CE for EC, 14 of the first 18 eighth-note positions or slots (78%) contain the same pitches.
Since these pitches, C and E, are both present in T (on the second and fourth beats), and they
are chord tones in A minor they are virtually interchangeable (A minor = A, C, E). While
there are two Bs in the first measure of both songs, the two Bs in STH are heard in the top
part. The second B in STH moves to a C/G on the first beat of the second measure. During
the first 18 notes, then the, basic melodic sequence is virtually the same.
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SUMMARY JUDGMENT

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1
#######16.######Instrumentation and orchestration. One of the most significant similarities
2 between T and STH is the overall texture and orchestration. Both songs feature acoustic
3 guitars on the main theme of the passage discussed immediately above. This acoustic guitar
4 part is the signature theme in both songs. The passages at issue also are supported by
5 sustained chords or pads using string or recorder sounds. The descending chromatic line is
6 doubled by string or recorder sounds in both songs (after the first iteration of the signature
7 theme in STH and after the second iteration in T). Example 2 provides transcriptions of
8 these two parts.
9 Example 2. String and recorder parts in Taurus and Stairway to Heaven
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12
13
14
#
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17,
The presence of acoustic guitar, strings, recorder/flute sounds, and
harpsichord as well as the noticeable absence of bass and drums (and other instruments
characteristic of rock and roll) lend both songs a decidedly classical style, particularly
evoking a Renaissance atmosphere.
18
In both songs, the descending bass line is doubled by instruments with very
similar sounds a cello in T and a bass recorder in STH. This thickening of the texture,
occurring after the initial exposition of the theme, contributes to the gradual build in
intensity.
19.#######Other important similarities provide additional evidence of copying. In both
songs the passages are set to pads or sustained strings or flute sounds. In T these pads are
heard in the first, second and third iterations of the passage. The pads in STH occur in the
second, fourth, fifth, and sixth iterations (see measures 5, 21, 33, and 37 in the transcription

SUMMARY JUDGMENT

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1 of STH). While the pads contain some different pitches, in both songs they begin with the
2 same sustained pitch as the highest note, E. The top note of any vertical sonority is almost
3 always the most prominent.
#####20.# ##Vocal Melody. The vocal melody in STH that is set to these guitar passages
5 in the A sections is similar to the harpsichord melodies heard in T during the third iteration
6 of the studio version (1:37) and in the keyboard parts at the very beginning of all the live
7 versions. In STH, this melody, which establishes the subject matter of the song and contains
8 the words stairway to heaven, is arguably the most important vocal theme in STH. The
9 melody of STH is set to three phrases that climb successively to three higher pitches: C, D,
10 and E. The melody in T also gradually works its way upward through these same pitches.
11 The first vocal phrase of STH begins similarly to the clavinet melody in T as can be seen
12 below:
13 Taurus
ABC A
Heaven
A B C BA C (Theres a lady whos sure)
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15 It is important to note that this keyboard melody in T and the vocal in STH are placed
16 similarly over the guitar passage in the A sections of both songs.
21.
The final cadences of these passages also contain important similarities. The
17
18 resolution of STH comes at the beginning of the fourth measure while in T the resolution
19 generally also comes in the fourth measure, but on the third beat. The cadence in STH
20 (essentially G major to A minor) contains the following pitches (as can be seen in measure
21 24 of the STH sheet music).
Stairway
D E
23 B C
G A
24 B A
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25
26
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The cadence in T generally resolves to A on the third beat of the fourth measure.
Melodically, the same movement from G to A occurs at the end of the measure leading into

SUMMARY JUDGMENT

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1 the next A section.
2 Taurus
D A (GA)
3 D E
A A
4
A B
5 D A
#
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7
8
Example 3 provides a transcription of this cadence from T at 1:47.

Example 3.
Taurus cadence (1:47)
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10
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12
13
14
15
16
17
18
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20
21
22
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24
25
26
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22.
While there are differences between these two cadences, both A sections
return to the tonic in the fourth measure. Most important, the melodic movement from flat-7
to 1 (G to A) is exactly the same in both songs, although in T it happens at the end of
measure four rather than at the beginning of the measure.
#23.#
#Significance. The passages at issue are clearly important, easily the most
important musical expression in both songs. In T the segments comprise the central musical
themes heard in the work. Although in the studio version of T a long introduction is heard, in
live versions, there was no introduction and the song began with the main theme heard in the
acoustic guitar. Similarly in STH the passages open the song, and have acquired iconic
status. Instantly recognizable, countless aspiring guitarists and other instrumentalists have

SUMMARY JUDGMENT
10

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1 learned these parts in their early programs of study.
2
###24.# In summary, important musical expression in Taurus and Part I of STH is
3 substantially similar. These similarities should be obvious to the average listener and
4 become explicit under musicological analysis. There is no doubt that the creators of
5 Stairway to Heaven drew upon the musical expression central to Taurus. Besides the
6 overall general form, sound, feel, style, and tempo, these similarities include the signature
7 themes of both songs, in particular the acoustic guitar passages I have labeled section A.
8 Nearly 80% of the pitches of the first eighteen notes match, along with their rhythms and
9 metric placement. The harmonic setting of these A sections feature the same chords during
10 the first three measures and an unusual variation on the traditional chromatic descending
11 bass line in the fourth measure. While the cadence is delayed slightly in T, each passage
12 ends by moving from flat-7 to 1 (G to A). Moreover, these passages are supported by similar
13 pads or sustained string or recorder sounds and string and bass recorder parts that are
14 identical. The passages are overlayered by vocal melodies in STH and prominent keyboard
15 parts in T that begin the same way. In professional opinion, these similarities, both
16 individually and in the aggregate, preclude the possibility of coincidence or independent
17 creation.
18 Preliminary Response to Ferrara and Mathes Reports
19
25. Before addressing the specific content in the undated Ferrara and Mathes reports,
20 I would like to reiterate the most important points in this case.

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26. Taurus contains original protectable expression. A central theme in Taurus is
22 the 4-measure guitar part.

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27. Taurus and Stairway are much more similar to each other than any of the
24 other songs mentioned by Ferrara in his report are to either of these songs. The guitar parts in
25 Taurus and Stairway are much more similar to each other than they are to any other
26 similar passages in any of the songs referenced in the Ferrara report.
27
28. These similarities, which are readily apparent even to casual listeners and are

SUMMARY JUDGMENT
11

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1 made clear in my expert analysis, are substantial and involve expression important to both
2 compositions.
3
29. Ferraras report is severely flawed in its methodology and is riddled with errors
4 and omissions as discussed further below. Despite offerings transcriptions of the recordings
5 of nearly all his examples of so-called prior art, he never offers a single note transcribed
6 from Taurus. Even more breathtaking in its inconsistency is his reliance on a painstaking
7 transcription of the recording of Stairway (which must have taken many hours to
8 complete) for his comparison of the works at issue in this case while completely avoiding a
9 similar dissection of Taurus. He describes using software to loop and slow down the
10 recording in order to accomplish this (see footnote 2 on p. 72). By his own count he has
11 identified 11,104 note heads in Stairway. While this transcription fills 29 pages (Visual
12 Exhibit B), he could not take the time to transcribe a single note from the recording of
13 Taurus though he references both the time frame in which it was recorded (January 1968)
14 and the album on which this work appeared (Spirit).
15
30. I have seen Dr. Ferraras work in numerous other comparisons and I dont believe
16 I have ever seen him go to such lengths to avoid discussing a sound recording in which a
17 composition is embodied. Indeed, standard musicological practice requires that the relevant
18 portions of both works be rendered in transcriptions. In the interest of fairness, the same
19 techniques and procedures must be used in the analysis both compositions. For some
20 unexplained reason Dr. Ferrara has chosen not to follow standard musicological procedures
21 (that he has followed in numerous other matters).
22
31. The deficiency of the lead sheet deposit copy of Taurus is noted at the very
23 beginning of Mr. Mathes report. In his words, the lead sheet is strangely lacking in that the
24 guitar figure, as played on the recording, is not there (Mathes Report para. 4). As can be
25 heard not only in the studio recording of Taurus, but in every live version as well (most of
26 which pre-date the studio version), this guitar passage forms an integral part of the
27 composition of Taurus as it was conceived, created and fixed in the period before the

SUMMARY JUDGMENT
12

#:2457
1 recording of the album Spirit.
2
32. If the guitar figure is not in the lead sheet, as stated by the defendants other
3 expert, then how can Dr. Ferraras comparison of the guitar passages, which relies entirely
4 upon this lead sheet, be be considered valid? Unfortunately, as a result, Dr. Ferrara has
5 wasted considerable time in preparing a 199-page report that ignores the relevant passage
6 found in the original work. This omission compels us to disregard almost the entirety of Dr.
7 Ferraras report.
8
33. Obviously he has taken an evasive approach to this case. Lead sheets are
9 notoriously lacking in musical detail, and, quite often, contain inaccuracies in their
10 representation of the composition. Indeed, the first sixteen measures of Stairway are
11 completely missing from the deposit copy lead sheet of that composition. Would the
12 defendants be willing to concede that none of the sounds heard during this entire section are
13 part of the protectable musical expression contained in the Stairway composition? Besides
14 the iconic guitar A section, these measures contain an eight-bar B section and recorder
15 backgrounds, that, in their aggregate, comprise nearly 275 notes. Plagiarists around the
16 world will be glad to learn that this expression is free for the taking if, according to the
17 defendants presumed argument, since it was not included in the deposit copy of Stairway,
18 it is not part of the composition.
19
34. In particular, Dr. Ferraras comparison of the melodies and rhythms (Attachments
20 C & D) of the iconic guitar passages at issue in Taurus and Stairway are so deeply
21 flawed that they must be completely discarded.
22
35. The pitch sequence heard in the first three measures of the A section of Taurus
23 contains at least 30 pitches (the number varies slightly among the different iterations of this
24 section and in terms of the notes that are sustained rather than re-struck). Ferraras analysis
25 shows only 15 notes and leaves out approximately half the notes (Musical Example 10).
26
36. Rhythmically, there is a steady stream of eighth notes in both passages during
27 the three measures, 24 consecutive eighth-notes (as charted in my report in example 1).

SUMMARY JUDGMENT
13

#:2458
1 Ferraras claim that there are no significant rhythmic similarities (p.42 para. 7) is patently
2 false. In fact, the rhythms in these three-measure passages are identical.
3
37. Mr. Mathes performance of the passages in question confirms these facts. He
4 plays a steady stream of 24 eighth-notes during these three measures, thereby directly
5 contradicting Ferraras faulty comparison.
6
38. Similarly, Dr. Ferraras comparisons with so-called prior art must also be rejected
7 because he has not relied on an accurate representation of the compositional elements of

8 Taurus. In fact, he has intentionally avoided them. This is a clear case of garbage in
9 garbage out.
10
39. Amazingly, Dr. Ferrara is unable to compare such basic elements as the tempos
11 of each work because the deposit copy of Taurus does not include an indication of the
12 tempo (p. 7 para 13). All he needed to do was listen briefly to the recording as Mr. Mathes
13 was clearly able to do in his recreation of the A section of Taurus. Ferrara also attempts to
14 make much of the fact that Stairway has lyrics and a vocal while Taurus does not; in
15 other words, Stairway is a song and Taurus is an instrumental. Strictly speaking this
16 statement is correct, however, the term song is frequently used when referring to
17 compositions that embody similarities to vocal works (e.g. Mendelssohns Songs Without
18 Words). Moreover, much of the opening section of Stairway in which the A guitar passage
19 occurs is an instrumental anyway.
20
40. Dr. Ferrara commits another analytical conceit when he states: The basic
21 rhythmic pulse in the portion of Taurus with similarities to Stairway is quarter notes, but
22 the basic rhythmic pulse in the portion of Stairway with similarities to Taurus is eighth
23 notes. Only after halving the notes values in "Taurus" can they be properly compared with
24 the notes in Stairway (p.40 para 4). The decision whether to represent the basic notational
25 unit as eighth notes or quarter notes is mostly arbitrary and has little effect on the sound of
26 these works when performed. Indeed, well before I saw the deposit copy I transcribed
27 Taurus using eighth notes as the basic unit (as I would expect most transcribers).

SUMMARY JUDGMENT
14

#:2459
41. My original report stated that while other works use similar descending minor
2 harmonic patterns, both Taurus and Stairway were unusual in their avoidance of the
3 typical final pitch of this sequence, the fifth or E in the key of A minor. Indeed, most of the
4 examples provided by Ferrara, including the Purcell, the Chopin, the Ellington, (Visual
5 Exhibits D, E, and H); Chim Chim Cher-ee (Musical Example 4), Walkin My Baby
6 Back Home (Musical Example 6), Spring Is Near (Musical Example 9), Cry Me a
7 River (Musical Example 13), Michelle (Musical Example 14-15), all arrive at the fifth
8 degree of the scale. Some, such as What Are You Doing the Rest of Your Life (Visual
9 Exhibit L), after a slight detour, reach a sustained fifth before returning to the beginning of
10 the sequence.
11
42. A Taste of Honey (Musical Example 12), Music to Watch Girls By (Musical
12 Examples 16-17) and More (Visual Exhibit G and Musical Example 7) never even arrive
13 at the flat 6 and only contain the first four notes of the descending sequence.
14
43. Some of his examples, such as How Insensitive (Musical Example 5), Night
15 and Day, and One Note Samba, (Visual Exhibits F, I., and K respectively) and feature
16 only a chromatic bass line and the chords or harmonies above them are different from those
17 found in Taurus and Stairway.
18
44. Quite a few (e.g., More and Summer Rain) also are in major keys and, as
19 Ferrara points out represent temporary tonicization (i.e., momentary change of the tonic
20 or key tone) of a minor key (p. 31, paragraph 26).
21
45. Many of Ferraras examples (e.g., Purcell, Visual Exhibit D and Meaning of the
22 Blues, Musical Example 3) also have very different durations and harmonic rhythms for the
23 progression.
24
46. Dr. Ferrara provides examples of what he claims are melodic similarities
25 between the guitar parts in section A of Taurus and Stairway and the guitar parts of
26 several other songs that predate Taurus. Once again it is essential to note that, since he is
27 not using a complete and accurate transcription of the guitar part in Taurus (as recognized

SUMMARY JUDGMENT
15

#:2460
1 by defendants other expert Mathes), these comparisons are fundamentally flawed. Still,
2 once again Taurus and Stairway are much more similar to each other than either is to
3 any of these examples. Musical Example 11 (an arrangement for Johnny Mathis of My
4 Funny Valentine) is very different rhythmically and in durations and in the guitar part
5 contains no pitches except arpeggiated chord tones. The Beatles version of a Taste of
6 Honey (Musical Example 12) and Davey Grahams recording of Cry Me a River
7 (Musical Example 13) are also different rhythmically and melodically (containing triplet
8 arpeggios). It is also important to note that the recording of Summer Rain (Musical
9 Examples 18 and 19) postdates several of the live versions of Taurus and more properly
10 belongs with the songs in the next section of Dr. Ferrraras report that discusses songs
11 released after Taurus.
12
47. Since Summer Rain and the next three examples postdate Taurus, they do
13 nothing to undermine the originality of the guitar passage in Taurus. Moreover, they are
14 less similar to either Taurus or Stairway than these two works are to each other. Ice
15 Cream Dream (Musical Example 20) does not contain the essential second tone of the
16 progression at all (#7 or G# in the key of A minor). Moreover, Ferraras analysis and
17 transcription are incorrect. The first chord of the song is G minor, not A minor meaning that
18 he does not even get the correct key in his transcription. Thoughts (Musical Example 21)
19 and And Shes Lonely (Musical Example 22), like the standard progressions in paragraph
20 17 of this report, arrive at the fifth degree of the progression (E in the key of A minor).
21
48. Dr. Ferraras Audio Exhibits are exemplar of more shoddy work. Many of the
22 pieces are incorrectly labeled or totally absent. Tracks 6, 7, and 8 are not the songs Walkin
23 My Baby Back Home, More, or Spring Is Near. Track 17 is not And Shes Lonely.
24 Without having the actual recordings that he has purported to represent in his transcriptions
25 and comparisons, it is impossible to determine their accuracy.
26
48. While I can easily provide more detailed analysis of these comparisons
27 (especially if I am provided all the correct recordings), for now I can emphatically state that

SUMMARY JUDGMENT
16

#:2461
1 not one of the examples provided by Ferrara and Mathes as having similar harmonies,
2 melodic and rhythmic patterns, and/or instrumentation (i.e., acoustic guitar) is as similar to
3 Taurus and Stairway as they are to each other.
4
49. Mr Mathes report at least appears to compare more of the compositional
5 elements of Taurus and Stairway. However, his report is colored by effusive praise and
6 hyperbole regarding Led Zeppelin and its individual members. Adjectives such as
7 unrivaled, inimitable, incredible, gorgeous, wonderful, and monumental,
8 extremely particular and very special and completely unique and beautifully so do little
9 to further objective analysis of the musical expression at issue. Given Led Zeppelins well
10 known history of having appropriated from other works perhaps he should adopt a more
11 cautious and neutral tone in his appraisal of their creative accomplishments. In any event,
12 much of his report reads more like an article in a fan magazine. John Paul Jones was not
13 only a great Bass player, but Zeppelin's secret weapon from an arrangement standpoint.
14 Robert Plants artistry became the model for all Rock singers and Jimmys legendary
15 solo made rock history.
16
50. I also find his constant use of the term line clich (which he attributes to his
17 training at Berklee College of Music) not particularly informative. Many of the other
18 elements in Stairway, in particular the two and three-chord vamps, could also be
19 considered clichs. Still, he recognizes that the guitar passages at issue in this case are more
20 than clichs and contain special elements. While he is correct in saying that the passage in
21 Stairway ascends higher than the line in Taurus, he does not directly compare the
22 pitches note-for-note as I have in my analysis which shows that nearly 78% or 14 of the first
23 18 eighth-note slots contain the same pitches. Much of the higher range of Stairway is due
24 to mere octave displacement (placing the same pitch class at a higher octave), not because of
25 the introduction of new pitches to the sequence.
26
51. In preparing this report I was careful to disregard performance elements and
27 focus on compositional elements in order to reach my conclusions.


SUMMARY JUDGMENT
17

#:2462

#:2463
1
2
AUDIO EXHIBITS
Audio Exhibit 1:
Dazed and Confused by Led Zeppelin
3
4
5
6
7
8
9
10
11
12
Audio Exhibit 2:
Dazed and Confused by Jack Holmes (1967)
Audio Exhibit 3:
Whole Lotta Love by Led Zeppelin
Audio Exhibit 4:
Muddy Waters You Need Love (1962) (10 seconds 28 seconds)
Audio Exhibit 5:
The Small Faces You Need Loving (1966) (25 seconds 48 seconds)
Audio Exhibit 6:
Live performance of Led Zeppelin playing Fresh Garbage 1101969
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AUDIO EXHIBITS COMPARISON AUDIO

Audio Exhibit 7:
Stairway to Heaven (0 seconds 25 seconds)
Audio Exhibit 8:
Taurus (45 seconds 1 minute, 13 seconds)
Audio Exhibit 9:
8 measures of Stairway from note 1 of the acoustic guitar, repeated multiple times
Audio Exhibit 10:
Part A:
8 Measures of Taurus from note 1 of the acoustic guitar, repeated multiple times
Audio Exhibit 11:
8 measures of Stairway and Taurus played together from note 1 of the acoustic
guitar, repeated multiple times

#:2464
1
2
3
4
5
6
7
AUDIO EXHIBITS - RE-RECORDING OF STAIRWAY TO HEAVEN

Audio Exhibit 12:
Acoustic Guitar
Audio Exhibit 13:
Bass
Audio Exhibit 14:
Drums
Audio Exhibit 15:
Electric 12 Strings
Audio Exhibit 16:
Electric Piano
Audio Exhibit 17:
End Guitar
Audio Exhibit 18:
Les Pauls
Audio Exhibit 19:
Recorders
Audio Exhibit 20:
Slide
Audio Exhibit 21:
Solo
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AUDIO EXHIBITS - RE-RECORDING OF TAURUS

Audio Exhibit 22:
Acoustic Guitar
Audio Exhibit 23:
Cello 1
Audio Exhibit 24:
Cello 2
Audio Exhibit 25:
Cymbal
Audio Exhibit 26:
Flute
Audio Exhibit 27:
Harpsichord
Audio Exhibit 28:
String Bass
Audio Exhibit 29:
Viola
Audio Exhibit 30:
Violins

#:2465
1
2
AUDIO EXHIBITS ALEXANDER STEWART

Audio Exhibit 31:
(Previously: Audio Exhibit A)
Stairway to Heaven (album)
3
4
5
6
7
8
9
10
11
12
13
Audio Exhibit 32:

Taurus (album)
(Previously: Audio Exhibit B)
Audio Exhibit 33:

Taurus Live at Ash Grove (7/10/1967)
(Previously: Audio Exhibit E)
Audio Exhibit 34:

(Previously: Audio Exhibit C)
Audio Exhibit 35:

(Previously: Audio Exhibit D)
Audio Exhibit 36:

Taurus Demo Recording (8/1967)
(Previously: Audio Exhibit H)
Audio Exhibit 37:

Taurus Live at Kaleidoscope (4/5/1968)
(Previously: Audio Exhibit F)
Audio Exhibit 38:

Taurus Live at The Time Coast
(Previously: Audio Exhibit G)
Audio Exhibit 39:

Taurus Live at Acoustic (1996)
(Previously: Audio Exhibit H)
14
15
16
17
18
19
20
21
22
23
Audio Exhibit 40:

(Previously: Audio Exhibit J)
Combination Acoustic Taurus Synced to STH SR Part A, played over Master
SR of STH
Audio Exhibit 41:
(Previously: Audio Exhibit K)
Acoustic Taurus Synced to Master SR of STH Part A
Audio Exhibit 42:
Stairway Acoustic Part A:
(Previously: Audio Exhibit L)
Audio Exhibit 43:

Taurus Acoustic Part A:
(Previously: Audio Exhibit M)
24
25
26
27
28
Audio Exhibit 44:

(Previously: Audio Exhibit N)
Combination Acoustic Taurus Synced to Master SR of STH (Part A), played
over Acoustic Stairway (Part A)

#:2466
1
2
3
AUDIO EXHIBITS REBUTTAL OF MATHES

Audio Exhibit 45:
Mathes Audio Exhibit Tempo Matched - Stairway
Audio Exhibit 46:
Mathes Audio Exhibit Tempo Matched - Taurus
Audio Exhibit 47:
Mathes Audio Exhibit Tempo Matched - STH & Taurus
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VIDEO EXHIBITS DEMONSTRATIVE GUITAR PERFORMANCE

Video Exhibit 1:
Taurus Left Hand
Video Exhibit 2:
Taurus Right Hand
Video Exhibit 3:
Stairway to Heaven Left Hand
Video Exhibit 4:
Stairway to Heaven Right Hand

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Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 1 of 22 Page ID

Francis Malofiy, Esq.

Glen L. Kulik, Esq. (SBN 082170)

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, as Trustee for

Hon. R. Gary Klausner

Case No. 15-cv-03462 RGK (AGRx)

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 2 of 22 Page ID

DECLARATION OF ALEXANDER STEWART, Ph.D

I, Alexander Stewart, Ph.D, declare as follows:

I am Professor of Music, Director of Latin American and Caribbean Studies,

University of California Press. My work encompasses extensive music transcriptions,

musicological analysis, historical research, and other scholarly activities, particularly in

popular music. I earned a Ph.D. in Music (Ethnomusicology Concentration) from the

scholar researching traditional and popular music in Mexico. As an active professional

as a witness could testify competently to such facts.

attached to this report.

Both songs prominently feature a musical segment that contains substantially

DECLARATION OF ALEXANDER STEWART IN OPPOSITION

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 3 of 22 Page ID

28 Case No. 15-cv-03462 RGK (AGRx)

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 4 of 22 Page ID

atmospheric sustained pads and short figurations in free time

As can be seen in the above analysis, the structure of Part I of Stairway to

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 5 of 22 Page ID

After Part I, at 2:14 STH transitions to other material, much of which

24 harmony, texture, tempo, instrumentation, and fretboard positioning and fingering.

Harmony. The underlying harmonic structure contains a descending

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 6 of 22 Page ID

The following is a harmonic analysis of the two passages:

both passages are treated with a nearly continuous eighth-note figuration.

28 Case No. 15-cv-03462 RGK (AGRx)

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 7 of 22 Page ID

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 8 of 22 Page ID

#######16.######Instrumentation and orchestration. One of the most significant similarities

The presence of acoustic guitar, strings, recorder/flute sounds, and

28 Case No. 15-cv-03462 RGK (AGRx)

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 9 of 22 Page ID

28 Case No. 15-cv-03462 RGK (AGRx)

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 10 of 22 Page ID

Example 3 provides a transcription of this cadence from T at 1:47.

Taurus cadence (1:47)

28 Case No. 15-cv-03462 RGK (AGRx)

DECLARATION OF ALEXANDER STEWART IN

Case 2:15-cv-03462-RGK-AGR Document 118-8 Filed 03/07/16 Page 11 of 22 Page ID

###24.# In summary, important musical expression in Taurus and Part I of STH is

20 I would like to reiterate the most important points in this case.

26. Taurus contains original protectable expression. A central theme in Taurus is

22 the 4-measure guitar part.

28 Case No. 15-cv-03462 RGK (AGRx)

DECLARATION OF ALEXANDER STEWART IN