FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL SKIDMORE, AS TRUSTEE 

FOR THE RANDY CRAIG WOLFE 

TRUST,

Plaintiff-Appellant,

v.

LED ZEPPELIN; JAMES PATRICK 

PAGE; ROBERT ANTHONY PLANT;

JOHN PAUL JONES; SUPER HYPE 

PUBLISHING, INC.; WARNER MUSIC 

GROUP CORPORATION; WARNER 

CHAPPELL MUSIC, INC.; ATLANTIC 

RECORDING CORPORATION; RHINO 

ENTERTAINMENT COMPANY,

Defendants-Appellees.

No. 16-56057

D.C. No.

2:15-cv-03462-

RGK-AGR
2 SKIDMORE V. LED ZEPPELIN

MICHAEL SKIDMORE, AS TRUSTEE 

FOR THE RANDY CRAIG WOLFE 

TRUST,

Plaintiff-Appellee,

v.

WARNER/CHAPPELL MUSIC, INC,

Defendant-Appellant,

and

LED ZEPPELIN; JAMES PATRICK 

PAGE; ROBERT ANTHONY PLANT;

JOHN PAUL JONES; SUPER HYPE 

PUBLISHING, INC.; WARNER MUSIC 

GROUP CORPORATION, ATLANTIC 

RECORDING CORPORATION; RHINO 

ENTERTAINMENT COMPANY,

Defendants.

No. 16-56287

D.C. No.

2:15-cv-03462-

RGK-AGR

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted March 12, 2018

San Francisco, California

Filed September 28, 2018
SKIDMORE V. LED ZEPPELIN 3

Before: Richard A. Paez and Sandra S. Ikuta, Circuit 

Judges, and Eric N. Vitaliano,* District Judge.

Opinion by Judge Paez

SUMMARY**

Copyright

The panel vacated in part the 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 Michael Skidmore owned 

the copyright to “Taurus,” that defendants had access to 

“Taurus,” and that the two songs were not substantially 

similar under the extrinsic test.

The panel held that certain of the district court’s jury 

instructions were erroneous and prejudicial. First, in 

connection with the extrinsic test for substantial similarity, 

the district court prejudicially erred by failing to instruct the 

jury that the selection and arrangement of unprotectable 

musical elements are protectable. Second, the district court 

prejudicially erred in its instructions on originality. The 

 * The Honorable Eric N. Vitaliano, United States District Judge for 

the Eastern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 SKIDMORE V. LED ZEPPELIN

panel concluded that the district court did not err in failing 

to instruct the jury on the inverse ratio rule, but such an 

instruction might be appropriate on remand.

The panel further held that the scope of copyright 

protection for an unpublished musical work under the 

Copyright Act of 1909 is defined by the deposit copy 

because copyright protection under the 1909 Act did not 

attach until either publication or registration. Therefore, the 

district court correctly ruled that sound recordings of 

“Taurus” as performed by Spirit could not be used to prove 

substantial similarity.

Addressing evidentiary issues, the panel held that the 

district court abused its discretion by not allowing recordings 

of “Taurus” to be played for the purpose of demonstrating 

access. The district court did not abuse its discretion by 

failing to exclude expert testimony on the basis of a conflict 

of interest.

In light of its disposition, the panel vacated the district 

court’s denial of defendants’ motions for attorneys’ fees and 

costs and remanded those issues as well.

COUNSEL

Francis Malofiy (argued) and Alfred Joseph Fluehr, Francis 

Alexander LLC, Media, Pennsylvania, for PlaintiffAppellant.

Peter J. Anderson (argued), Law Offices of Peter J. 

Anderson, Santa Monica, California; Helens M. Freeman, 
SKIDMORE V. LED ZEPPELIN 5

Phillips Nizer LLP, New York, New York; for DefendantsAppellees.

OPINION

PAEZ, Circuit Judge:

This copyright case involves a claim that Led Zeppelin 

copied key portions of its timeless hit “Stairway to Heaven” 

from the song “Taurus,” which was written by Spirit band 

member Randy Wolfe. Years after Wolfe’s death, the 

trustee of the Randy Craig Wolfe Trust, Michael Skidmore, 

brought this suit for copyright infringement against Led 

Zeppelin, James Patrick Page, Robert Anthony Plant, John 

Paul Jones, Super Hype Publishing, and the Warner Music 

Group Corporation as parent of Warner/Chappell Music, 

Inc., Atlantic Recording Corporation, and Rhino 

Entertainment Co. (collectively, “Defendants”). The case 

proceeded to a jury trial, and the jury returned a verdict in 

favor of Defendants. Skidmore appeals, raising a host of 

alleged trial errors and challenging the district court’s 

determination that for unpublished works under the 

Copyright Act of 1909 (“1909 Act”), the scope of the 

copyright is defined by the deposit copy. We hold that 

several of the district court’s jury instructions were 

erroneous and prejudicial. We therefore vacate the amended 

judgment in part and remand for a new trial. For the benefit 

of the parties and the district court on remand, we also 

address whether the scope of copyright protection for an 

unpublished work under the 1909 Act is defined by the 

deposit copy. We hold that it is. We also address several 

other evidentiary issues raised by Skidmore that are likely to 

arise again on remand. Finally, in light of our disposition, 
6 SKIDMORE V. LED ZEPPELIN

we vacate the denial of Defendants’ motions for attorneys’ 

fees and costs and remand those issues as well.

I.

A.

Randy Wolfe, nicknamed Randy California by Jimi 

Hendrix, was a musician and a member of the band Spirit. 

He wrote the song “Taurus” in late 1966. Spirit signed a 

recording contract in August 1967, and its first album 

Spirit—which included “Taurus”—was released in late 1967 

or early 1968. Hollenbeck Music (“Hollenbeck”) filed the 

copyright for Taurus in December 1967 and listed Randy 

Wolfe as the author. As part of the copyright registration 

packet, “Taurus” was transcribed into sheet music that was 

deposited with the Copyright Office (“Taurus deposit 

copy”).

The band Led Zeppelin, formed in 1968, consisted of 

Jimmy Page, Robert Plant, John Paul Jones, and John 

Bonham. Spirit and Led Zeppelin’s paths crossed several 

times in the late 1960s and early 1970s. On tour, Led 

Zeppelin would occasionally perform a cover of another 

Spirit song, “Fresh Garbage.” Spirit and Led Zeppelin both 

performed at a concert in Denver in 1968 and at the Atlanta 

International Pop Festival, the Seattle Pop Festival, and the 

Texas Pop Festival in 1969. There is no direct evidence that 

Led Zeppelin band members listened to Spirit’s 

performances on any of these dates, although members of 

Spirit testified that they conversed with Led Zeppelin 

members, and one Spirit band member testified that Spirit 

had played “Taurus” the night both bands performed in 

Denver. Additionally, there was evidence at trial that Robert 

Plant attended a February 1970 Spirit performance. Jimmy 

Page testified that he currently owns a copy of the album 
SKIDMORE V. LED ZEPPELIN 7

Spirit, but he was unable to clarify when he had obtained that 

copy. In late 1971, Led Zeppelin released its fourth album, 

an untitled album known as “Led Zeppelin IV.” One of the 

tracks on the album is the timeless classic “Stairway to 

Heaven,” which was written by Jimmy Page and Robert 

Plant.

Randy Wolfe passed away in 1997, and his mother 

established the Randy Craig Wolfe Trust (the “Trust”). All 

of Wolfe’s intellectual property rights were transferred to the 

Trust, including his ownership interest in “Taurus.”1 His 

mother was the trustee or co-trustee until her death in 2009, 

after which time Skidmore became the trustee. Immediately

after the Supreme Court’s decision in Petrella v. MetroGoldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967–68 (2014), 

which clarified that laches is not a defense where copyright 

infringement is ongoing, Skidmore filed this suit on behalf 

of the Trust alleging that “Stairway to Heaven” infringed the 

copyright in “Taurus.”

B.

Skidmore initially filed his complaint in the Eastern 

District of Pennsylvania, but the case was subsequently 

transferred to the Central District of California. Skidmore v. 

Led Zeppelin, 106 F. Supp. 3d 581, 589–90 (E.D. Pa. 2015). 

Skidmore alleged direct, contributory, and vicarious 

copyright infringement. He also alleged a claim titled “Right 

of Attribution—Equitable Relief—Falsification of Rock n’ 

Roll History.” With regard to copyright infringement, 

 1 Ownership of the Taurus copyright was one of the disputed issues 

at trial, but the jury found that Skidmore “is the owner of a valid 

copyright in Taurus.” The Defendants do not challenge that finding on 

appeal.
8 SKIDMORE V. LED ZEPPELIN

Skidmore alleged that the opening notes of “Stairway to 

Heaven” are substantially similar to those in “Taurus.” The 

Defendants disputed ownership, substantial similarity, and 

access. They also alleged a number of affirmative defenses 

including unclean hands, laches, and independent creation.

After discovery, Defendants moved for summary 

judgment, which the district court granted in part and denied 

in part. Specifically, the district court granted summary 

judgment to John Paul Jones, Super Hype Publishing, and 

Warner Music Group (“summary judgment defendants”), as 

they had not performed or distributed “Stairway to Heaven” 

in the three-year statute of limitations period preceding the 

filing of the complaint. Additionally, the district court 

granted summary judgment to Defendants on Skidmore’s 

“Right of Attribution—Equitable Relief—Falsification of 

Rock n’ Roll History” claim, as the district court “had 

diligently searched but [was] unable to locate any cognizable 

claim to support this [Falsification of Rock n’ Roll History] 

theory of liability.”

Because the 1909 Act governed the scope of the 

copyright Wolfe obtained in “Taurus,” the district court 

further concluded that the protectable copyright was the 

musical composition transcribed in the deposit copy of 

“Taurus” and not the sound recordings. The district court 

therefore concluded that to prove substantial similarity 

between “Taurus” and “Stairway to Heaven,” Skidmore 

would have to rely on the “Taurus” deposit copy rather than 

a sound recording. The district court also found that there 

were triable issues of fact relating to ownership, access, 

substantial similarity, and damages that could only be 

resolved at trial.

At a pretrial conference in April 2016, after reviewing 

summaries of each witnesses’ proposed testimony, the 
SKIDMORE V. LED ZEPPELIN 9

district court decided to allot each side ten hours to present 

its case. The district court also tentatively granted 

Defendants’ motion in limine to exclude recordings of Spirit 

performing “Taurus” as well as expert testimony based on 

those recordings, again concluding that the 1967 deposit 

copy should be the baseline when considering substantial 

similarity. Before trial, the district court filed an order 

confirming its prior tentative rulings on the motions in 

limine.

As part of expert discovery, Skidmore’s attorney 

deposed Dr. Lawrence Ferrara, Defendants’ expert 

musicologist. During the deposition it came to light that in 

2013 Dr. Ferrara had done a comparison of the “Taurus” and 

“Stairway to Heaven” recordings for Rondor Music 

(“Rondor”), a subsidiary of Universal Music Publishing 

Group.2 Dr. Ferrara testified that when he was approached 

by Defendants’ counsel, he informed them that he had 

already completed an analysis for Rondor. Defendants’ 

counsel consulted with Rondor, which waived any conflict 

and consented to Dr. Ferrara being retained as an expert 

witness for Defendants. Throughout the deposition, 

Skidmore’s counsel objected and requested copies of Dr. 

Ferrara’s communications with Rondor and Universal. 

After the deposition, Skidmore filed a Motion for Sanctions 

and to Preclude Dr. Ferrara from testifying at trial. The 

district court denied Skidmore’s motion because it was 

improperly noticed, over the page limit, and untimely.

 2 Skidmore presented evidence that Universal Music was working 

for Hollenbeck, the publisher of Spirit’s music. Skidmore alleged during 

the deposition that because of this connection, Hollenbeck owed

fiduciary duties to Skidmore.
10 SKIDMORE V. LED ZEPPELIN

A five-day jury trial ensued. While questioning Jimmy 

Page, Skidmore’s counsel requested that several sound 

recordings of Spirit performing “Taurus” be played so that 

he could ask Page whether he had ever heard any of the 

recordings. When Defendants objected, Skidmore’s counsel 

explained that the recordings were offered to prove access, 

rather than substantial similarity. The district court 

determined that although the sound recordings were relevant 

to prove access, it would be too prejudicial for the jury to 

hear the recordings. To avoid any prejudice, the district court 

had Page listen to the recordings outside the presence of the 

jury and then allowed Skidmore’s counsel to question him 

about them in the presence of the jury. Page eventually 

testified that he presently had an album containing “Taurus” 

in his collection, but while testifying he did not admit to 

having heard any recordings of “Taurus” prior to composing 

“Stairway to Heaven.”

Also of note, Kevin Hanson, Skidmore’s master 

guitarist, performed the “Taurus” deposit copy as he 

interpreted it, and played recordings of his performances of 

the beginning notes of the “Taurus” deposit copy and 

“Stairway to Heaven.” The “Taurus” recording Hanson 

played for the jury during his testimony, however, only 

contained the bass clef and excluded the treble clef, which 

contained additional notes.

During the cross-examination of Dr. Ferrara, Skidmore 

used up the last of his ten hours of allotted trial time. The 

district court found that Skidmore had not made effective use 

of his time for a variety of reasons, but granted Skidmore 

two additional minutes to finish cross-examining Dr. Ferrara 

and ten minutes to cross-examine each remaining witness. 

Skidmore was not allowed to call rebuttal witnesses.
SKIDMORE V. LED ZEPPELIN 11

During jury deliberations, the jury asked to hear 

Skidmore’s recording of Hanson playing both “Taurus” and 

“Stairway to Heaven.” The district court asked if the jury 

would like to hear the deposit-copy version of “Taurus” or 

the version of “Taurus” with only the bass clef. One juror 

responded with “bass clef” but the jury foreperson responded 

with “the full copy.” The district court directed that the full 

deposit-copy version be played and asked if that answered 

the jury’s question, to which the foreperson replied “thank 

you.” The other juror did not object to hearing the full copy 

rather than the bass clef version.

The jury ultimately returned a verdict for Defendants. 

The jury found that Skidmore owned the copyright to 

“Taurus,” that Defendants had access to “Taurus,” but that 

the two songs were not substantially similar under the 

extrinsic test.3 Following the verdict, the district court 

entered an amended judgment in favor of all Defendants. 

Skidmore did not file any post-judgment motions 

challenging the verdict, but timely appealed from the 

amended judgment.4 In this appeal, Skidmore challenges 

(1) various jury instructions, (2) the district court’s ruling 

that substantial similarity must be proven using the copyright 

 3 The extrinsic test is one of two tests used to determine if an 

allegedly infringing work is substantially similar to a copyrighted work. 

This test objectively compares the protected areas of a work. See, infra 

p. 13; Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).

4 Skidmore appeals from the amended judgment, which listed all 

defendants, but none of his arguments implicate the summary judgment 

defendants. Defendants argue that this waives any challenge to the 

summary judgment order as it relates to those defendants. We agree. 

See, e.g., Classic Concepts, Inc. v. Linen Source, Inc., 716 F.3d 1282, 

1285 (9th Cir. 2013). Accordingly, we do not address any of the claims 

against the summary judgment defendants, and we do not disturb the 

amended judgment as it relates to those defendants.
12 SKIDMORE V. LED ZEPPELIN

deposit copy, (3) the district court’s ruling that sound 

recordings could not be played to prove access, (4) the 

district court’s decision not to exclude or sanction Dr. 

Ferrara, (5) the fact that the full version of “Taurus” rather 

than the bass clef version was played in response to the 

jury’s request, and (6) the imposition of strict time limits as 

a violation of due process.

Following entry of the amended judgment, 

Warner/Chappell filed a motion for attorneys’ fees and a 

motion for costs. The district court denied these motions. 

Warner/Chappell timely cross-appealed, and we 

consolidated the two appeals.

II.

We begin with a discussion of the elements that 

Skidmore must establish to prevail on his copyright 

infringement claim.

In order to prove copyright infringement, a plaintiff must 

show “(1) that he owns a valid copyright in his [work], and 

(2) that [the defendants] copied protected aspects of the 

[work’s] expression.” See Rentmeester v. Nike, Inc., 

883 F.3d 1111, 1116–17 (9th Cir. 2018) (citing Feist 

Publ’ns, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 

340, 345 (1991)). In this appeal, the parties do not contest 

that Skidmore owns a valid copyright in “Taurus,” so our 

analysis turns on the second issue.

Whether Defendants copied protected expression 

contains two separate and distinct components: “copying” 

and “unlawful appropriation.” Rentmeester, 883 F.3d at 

1117. A plaintiff must be able to demonstrate that a 

defendant copied his work, as independent creation is a 

complete defense to copyright infringement. See Feist 
SKIDMORE V. LED ZEPPELIN 13

Publ’ns, 499 U.S. at 345–46; see also Rentmeester, 883 F.3d 

at 1117. In cases such as this one where there is no direct 

evidence of copying, the plaintiff “can attempt to prove it 

circumstantially by showing that the defendant had access to 

the plaintiff’s work and that the two works share similarities 

probative of copying.” Rentmeester, 883 F.3d at 1117. 

“When a high degree of access is shown,” a lower amount of 

similarity is needed to prove copying. Rice v. Fox 

Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) 

(citation omitted). “To prove copying, the similarities 

between the two works need not be extensive, and they need 

not involve protected elements of the plaintiff’s work. They 

just need to be similarities one would not expect to arise if 

the two works had been created independently.” 

Rentmeester, 883 F.3d at 1117.

To prove “unlawful appropriation” a higher showing of 

substantial similarity is needed. Id. The works must share 

substantial similarities and those similarities must involve 

parts of the plaintiff’s work that are original and therefore 

protected by copyright. Id. To determine whether an 

allegedly infringing work is substantially similar to the 

original work, we employ the extrinsic and intrinsic tests. 

The extrinsic test is an objective comparison of protected 

areas of a work. This is accomplished by “breaking the 

works down into their constituent elements, and comparing 

those elements” to determine whether they are substantially 

similar. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). 

Only elements that are protected by copyright are compared 

under the extrinsic test. Id. The intrinsic test is concerned 

with a subjective comparison of the works, as it asks 

“whether the ordinary, reasonable person would find the 

total concept and feel of the works to be substantially 

similar.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 

485 (9th Cir. 2000) (citation omitted).
14 SKIDMORE V. LED ZEPPELIN

III.

We turn first to Skidmore’s argument that the district 

court failed to properly instruct the jury on the elements of 

his copyright infringement claim as discussed above and 

whether the court’s alleged errors were prejudicial. 

Skidmore argues: (1) that the district court erred by failing 

to give an instruction that selection and arrangement of 

otherwise unprotectable musical elements are protectable; 

(2) that the district court’s jury instructions on originality 

and protectable musical elements were erroneous; and 

(3) that the district court erred in failing to give an inverse

ratio rule instruction. We address each of these in turn.

We review for abuse of discretion the district court’s 

formulation of jury instructions and review de novo whether 

the instructions misstate the law. See Louis Vuitton 

Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 941 (9th 

Cir. 2011). As a general matter, prejudicial error in jury 

instructions occurs when “looking to the instructions as a 

whole, the substance of the applicable law was [not] fairly 

and correctly covered.” Swinton v. Potomac Corp., 270 F.3d 

794, 802 (9th Cir. 2001) (quoting In re Asbestos Cases, 

847 F.2d 523, 524 (9th Cir. 1998)) (alteration in original)). 

“An error in instructing the jury in a civil case requires 

reversal unless the error is more probably than not 

harmless.” Id. at 805 (quoting Caballero v. City of Concord, 

956 F.2d 204, 206–07 (9th Cir. 1992)).

A.

Skidmore argues that the district court’s failure to 

instruct the jury that the selection and arrangement of 

unprotectable musical elements are protectable is reversible 

error. Each side had included a version of such an 

instruction in their proposed jury instructions. The district 
SKIDMORE V. LED ZEPPELIN 15

court, however, did not include either instruction in its final 

version of the instructions nor did it modify any of the 

substantive instructions to include this point. We conclude 

that the district court erred by failing to instruct the jury on 

this issue and that the error was prejudicial.

We are concerned here with the extrinsic test for 

substantial similarity, as the jury decided that there was no 

extrinsic substantial similarity and failed to reach the 

intrinsic test. In the musical context, the extrinsic test can be 

difficult to administer. See Swirsky, 376 F.3d at 848. 

Although individual elements of a song, such as notes or a 

scale, may not be protectable, “music is comprised of a large 

array of elements, some combination of which is protectable 

by copyright.” Id. at 849. For example, we have “upheld a 

jury finding of substantial similarity based on the 

combination of five otherwise unprotectable elements.” Id. 

(citing Three Boys, 212 F.3d at 485). In other circumstances, 

we have recognized that “a combination of unprotectable 

elements is eligible for copyright protection only if those 

elements are numerous enough and their selection and 

arrangement original enough that their combination 

constitutes an original work of authorship.” Satava v. 

Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (citations omitted). 

The copyright in an arrangement of public domain elements 

extends only to the originality contributed by the author to 

the arrangement. Id. at 811–12; see also Feist Publ’ns,

499 U.S. at 345. Thus, there can be copyright protection on 

the basis of a sufficiently original combination of otherwise 

non-protectable music elements. The district court’s failure 

to so instruct the jury was especially problematic in this case, 

because Skidmore’s expert, Dr. Stewart, testified that there 

was extrinsic substantial similarity based on the combination 

of five elements—some of which were protectable and some 

of which were in the public domain.
16 SKIDMORE V. LED ZEPPELIN

Although Defendants requested an instruction on 

selection and arrangement, they argue that the district court’s 

failure to give such an instruction does not warrant reversal. 

First, Defendants argue that Skidmore waived any objection 

to the court’s failure to give such an instruction, in part 

because Skidmore did not voice any objection when the 

district court was reading the final jury instructions to 

counsel. This argument is baseless. Although Skidmore’s 

counsel transcribed and assembled the jury instructions as 

directed by the district court, the court specifically stated that 

it did not want any oral objections to its final jury 

instructions, as the parties had already submitted separate 

instructions and written objections to the other side’s 

proposed instructions. Skidmore proposed an instruction on 

selection and arrangement as did the Defendants and each 

side objected to the other side’s proposed instruction as 

required by Local Rule 51-1, 5. See, e.g., Yamada v. Nobel 

Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016).

Next, Defendants contend that Skidmore did not argue 

or present evidence of a copyrightable selection and 

arrangement of otherwise unprotectable elements. When 

objecting to one of Skidmore’s jury instructions, however, 

Defendants expressly stated that Skidmore relied on a 

selection and arrangement theory in his argument for 

infringement. On appeal, Defendants maintain that 

Skidmore instead relied on the similarity of a “combination” 

of elements present in “Taurus” and “Stairway to Heaven.” 

Defendants’ refined argument splits hairs and contradicts 

their earlier position. Whether or not the words “selection 

and arrangement” were used at trial is irrelevant because it 

is clear that this legal theory formed the basis of Skidmore’s 

infringement claim. Indeed, the fact that Defendants 

recognized this argument at trial undermines their contrary 

argument here. Additionally, many selection and 
SKIDMORE V. LED ZEPPELIN 17

arrangement cases also refer to a “combination” of musical 

elements, further undermining Defendants’ proffered 

distinction. See Swirsky, 376 F.3d at 849; Satava, 323 F.3d 

at 811. As both sides recognized in their proposed jury 

instructions, a selection and arrangement instruction was 

appropriate and necessary given the basis for Skidmore’s 

infringement claim.

Defendants also argue that any error is harmless, because 

the jury would likely have reached the same verdict even if 

it had been instructed on selection and arrangement. See 

Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). We 

disagree. Without a selection and arrangement instruction, 

the jury instructions severely undermined Skidmore’s 

argument for extrinsic similarity, which is exactly what the 

jury found lacking. Given that nothing else in the 

instructions alerted the jury that the selection and 

arrangement of unprotectable elements could be 

copyrightable, “looking to the instructions as a whole, the 

substance of the applicable law was [not] fairly and correctly 

covered.” Swinton, 270 F.3d at 802 (alteration in original) 

(quotations omitted). Indeed, as discussed further below, 

other instructions when considered in the absence of a 

selection and arrangement instruction imply that selection 

and arrangement of public domain material is not 

copyrightable. For instance, Jury Instruction No. 20, which 

instructed the jury that “any elements from . . . the public 

domain are not considered original parts and not protected 

by copyright,” suggests that no combination of these 

elements can be protected by copyright precisely because the 

court omitted a selection and arrangement instruction. The 

district court’s failure to instruct the jury on selection and 
18 SKIDMORE V. LED ZEPPELIN

arrangement was therefore prejudicial given Skidmore’s 

theory of infringement.5 Id.

B.

Skidmore also argues that the district court erred in two 

ways in its formulation of the jury instructions on originality.

First, Skidmore contends that Jury Instruction No. 16 

erroneously stated that copyright does not protect 

“chromatic scales, arpeggios or short sequences of three 

notes.”6 Second, Skidmore argues that Jury Instruction No. 

 5 Each side proposed its own selection and arrangement instruction 

and objected to the language of the other party’s proposed instruction. 

We leave it to the district court on remand to determine which version of 

the proposed instructions to adopt, given applicable precedent on the 

issue. See, e.g., Feist Publ’ns, 499 U.S. at 345; Swirsky, 376 F.3d at 848; 

Satava, 323 F.3d at 811; Three Boys, 212 F.3d at 485.

6 In full, Jury Instruction No. 16 reads as follows:

Plaintiff has filed a claim against Defendants for 

violation of the United States Copyright Act, which 

governs this case. In order for you to undertake your 

responsibility, you must know what a copyright is, 

what it protects, and what it does not protect.

Copyright confers certain exclusive rights to the 

owner of a work including the rights to:

1. Reproduce or authorize the reproduction of 

the copyrighted work;

2. Prepare derivative works based upon the 

copyrighted work.

3. Distribute the copyrighted work to the public; 

and
SKIDMORE V. LED ZEPPELIN 19

20 on originality should not have instructed the jury that 

“[h]owever, any elements from prior works or the public 

domain are not considered original parts and not protected 

by copyright,” and should have included the admonition 

from the Ninth Circuit Model Jury Instruction 17.13 that 

“[i]n copyright law, the ‘original’ part of a work need not be 

new or novel.”7 Defendants argue that Skidmore waived a 

challenge to these jury instructions for the same reason he 

waived a challenge to the lack of a selection and arrangement 

 

4. Perform publicly a copyrighted musical 

work.

Copyright only protects the author’s original 

expression in a work and does not protect ideas, 

themes or common musical elements, such as 

descending chromatic scales, arpeggios or short 

sequences of three notes.

Also, there can be no copyright infringement 

without actual copying. If two people independently 

create two works, no matter how similar, there is no 

copyright infringement unless the second person 

copied the first.

7 Jury Instruction No. 20 reads:

An original work may include or incorporate elements 

taken from prior works or works from the public 

domain. However, any elements from prior works or 

the public domain are not considered original parts and 

not protected by copyright. Instead, the original part 

of the plaintiff’s work is limited to the part created:

1. independently by the work’s author, that is, 

the author did not copy it from another work;

and

2. by use of at least some minimal creativity.
20 SKIDMORE V. LED ZEPPELIN

instruction. For the reasons discussed above, this argument 

fails. We further conclude that the district court erred in its 

instructions on originality.

There is a low bar for originality in copyright. See 

Swirsky, 376 F.3d at 851 (“[O]riginality means little more 

than a prohibition of actual copying.”) (internal quotations 

omitted). Copyright extends to parts of a work created 

(1) independently, i.e., not copied from another’s work and 

(2) which contain minimal creativity. See Feist Publ’ns, 

499 U.S. at 348. Most basic musical elements are not 

copyrightable. See Smith v. Jackson, 84 F.3d 1213, 1216 n.3 

(9th Cir. 1996) (explaining that “common or trite” musical 

elements are not protected); Satava, 323 F.3d at 811 (holding 

that expressions that are common to a subject matter or 

medium are not protectable); Swirsky, 376 F.3d at 851 

(acknowledging that a single musical note lacks copyright 

protection). In Swirsky, however, we recognized that while 

“a single musical note would be too small a unit to attract 

copyright protection . . . an arrangement of a limited number 

of notes can garner copyright protection.” Id. We therefore 

concluded that seven notes could be sufficient to garner 

copyright protection. See id. at 852.

Jury Instruction No. 16 included an instruction that 

“common musical elements, such as descending chromatic 

scales, arpeggios or short sequences of three notes” are not 

protected by copyright. This instruction runs contrary to our 

conclusion in Swirsky that a limited number of notes can be 

protected by copyright. See id. at 851. When considered in 

the absence of a selection and arrangement instruction, Jury 

Instruction No. 16 could have led the jury to believe that 

even if a series of three notes or a descending chromatic scale 

were used in combination with other elements in an original 

manner, it would not warrant copyright protection. See 
SKIDMORE V. LED ZEPPELIN 21

Swinton, 270 F.3d at 802. This error was not harmless as it 

undercut testimony by Skidmore’s expert that Led Zeppelin 

copied a chromatic scale that had been used in an original 

manner. See Clem, 566 F.3d at 1182 (an error in a jury 

instruction is harmless if “it is more probable than not that 

the jury would have reached the same verdict had it been 

properly instructed” (citation omitted)).

Similarly, Jury Instruction No. 20 omitted parts of the 

test for originality and added misleading language. Under 

Feist Publications, originality requires that a work not be 

copied and that it be produced with a minimal degree of 

creativity. 499 U.S. at 348. The original part of a work does 

not need to be new or novel, as long as it is not copied. Id. 

The district court, however, omitted Skidmore’s requested 

instruction—drawn from Ninth Circuit Model Instruction 

17.13—that “the ‘original’ part of a work need not be new 

or novel.” 8 Additionally, Jury Instruction No. 20 stated that 

“any elements from prior works or the public domain are not 

considered original parts and not protectable by copyright.” 

While this statement is not literally incorrect, it misleadingly 

 8 At the time of trial, Ninth Circuit Model Instruction 17.13 provided 

that:

An original work may include or incorporate 

elements taken from works owned by others, with the 

owner’s permission. The original parts of the 

plaintiff’s work are the parts created:

1. independently by the work’s author, that is, the 

author did not copy it from another work; and

2. by use of at least some minimal creativity.

In copyright law, the “original” part of a work 

need not be new or novel.
22 SKIDMORE V. LED ZEPPELIN

suggests that public domain elements such as basic musical 

structures are not copyrightable even when they are arranged 

or modified in a creative, original way. See Swirsky, 

376 F.3d at 852. Ninth Circuit Model Instruction 17.13 

avoids this problem by not including this misleading 

statement.

Nowhere did the jury instructions include any statements 

clarifying that the selection and arrangement of public 

domain elements could be considered original. Jury 

Instruction No. 20 compounded the errors of that omission 

by furthering an impression that public domain elements are 

not protected by copyright in any circumstances. This is in 

tension with the principle that an original element of a work 

need not be new; rather, it need only be created 

independently and arranged in a creative way. See Feist 

Publ’ns, 499 U.S. at 345, 349; see also Swirsky, 376 F.3d at 

849. Jury Instruction Nos. 16 and 20 in combination likely 

led the jury to believe that public domain elements—such as 

a chromatic scale or a series of three notes—were not 

protectable, even where there was a modification or 

selection and arrangement that may have rendered them 

original. Skidmore’s expert testified that “Taurus” 

contained certain public domain elements—such as 

chromatic scales—that were modified in an original way, but 

the jury instructions as a whole likely would have led the 

jury to believe that such evidence could not establish the 

basis of a cognizable copyright claim. Similarly, the 

instructions undermined Skidmore’s expert’s testimony that 

“Taurus” and “Stairway to Heaven” were similar because of 

the combination of otherwise unprotectable elements.

In sum, we conclude that the district court’s originality 

jury instructions erroneously instructed the jury that public 

domain elements are not copyrightable, even if they are 
SKIDMORE V. LED ZEPPELIN 23

modified in an original manner or included as part of a 

selection and arrangement. We further conclude that these 

instructions were prejudicial as they undermined the heart of 

Skidmore’s argument that “Taurus” and “Stairway to 

Heaven” were extrinsically substantially similar. Clem, 

566 F.3d at 1182. Because the district court erred both in the 

formulation of the originality jury instructions and in 

withholding a selection and arrangement instruction, we 

vacate the judgment and remand for a new trial.

C.

Skidmore also argues that the district court erred by not 

including a jury instruction on the inverse ratio rule. Under 

the “inverse ratio rule,” a lower standard of proof of 

substantial similarity is required “when a high degree of 

access is shown.” Rice, 330 F.3d at 1178 (citation omitted). 

We recently clarified the framework underlying the inverse 

ratio rule. See Rentmeester, 883 F.3d at 1124–25. This rule 

“assists only in proving copying, not in proving unlawful 

appropriation.” Id. at 1124. Even if a plaintiff proves that a 

defendant copied his work, the plaintiff must still show that 

the copying “amounts to unlawful appropriation.” Id.; see 

also Peters v. West, 692 F.3d 629, 635 (7th Cir. 2012). “The 

showing of substantial similarity necessary to prove 

unlawful appropriation does not vary with the degree of 

access the plaintiff has shown.” Rentmeester, 883 F.3d at 

1124; see also Positive Black Talk Inc. v. Cash Money 

Records Inc., 394 F.3d 357, 372 n.11 (5th Cir. 2004).

Unlike in Rentmeester, where the parties did not contest 

that copying had occurred, Skidmore must prove both 

unlawful appropriation and copying to prevail. 883 F.3d at 

1124. While an inverse ratio rule jury instruction may have 

been helpful to Skidmore in proving copying, the jury 

verdict form makes clear that the jury did not decide whether 
24 SKIDMORE V. LED ZEPPELIN

Led Zeppelin had copied parts of “Taurus.” Rather, the jury 

ended its deliberations after deciding that “Taurus” and 

“Stairway to Heaven” were not substantially similar under 

the extrinsic test. Substantial similarity under the extrinsic 

and intrinsic test goes to unlawful appropriation, rather than 

copying. Id. at 1117. The jury found that under the extrinsic 

test, any similarity was not substantial. Therefore, there was 

not unlawful appropriation under Rentmeester. See id. 

Because the jury did not reach the question of copying, the 

inverse ratio rule was not relevant, and any error in not 

including it was harmless.

Because we are remanding for a new trial, however, we 

note that in a case like this one where copying is in question 

and there is substantial evidence of access, an inverse ratio 

rule jury instruction may be appropriate. See Rice, 330 F.3d 

at 1178 (declining to apply the inverse ratio rule at the 

summary judgment stage because the claims of access were 

“based on speculation, conjecture, and inference which are 

far less than the ‘high degree of access’ required for 

application of the inverse ratio rule”); see also Swirsky, 

376 F.3d at 844 ( applying the inverse ration rule because 

access was conceded); Metcalf v. Bocho, 294 F.3d 1069, 

1075 (9th Cir. 2002) (same); Shaw v. Lindheim, 919 F.2d 

1353, 1361–62 (9th Cir. 1990) (same). Here, there was 

substantial evidence of access, and indeed, the jury found 

that both James Page and Robert Plant had access to 

“Taurus.” On remand, the district court should reconsider 

whether an inverse ratio rule instruction is warranted unless 

it determines, as a matter of law, that Skidmore’s “evidence 

as to proof of access is insufficient to trigger the inverse ratio 

rule.” Rice, 330 F.3d at 1178.
SKIDMORE V. LED ZEPPELIN 25

IV.

Because we are remanding for a new trial, we address 

three of Skidmore’s additional assignments of error that will 

continue to be relevant on remand. First, we address whether 

the district court erred by holding that the deposit copy of 

“Taurus,” rather than a sound recording, defined the scope 

of the protectable copyright. We hold that there was no error 

in the district court’s ruling. Next, we analyze whether the 

district court abused its discretion by not allowing recordings 

of “Taurus” to be played for the purpose of demonstrating 

access; we conclude that it did. Finally, we examine whether 

the district court abused its discretion in not excluding Dr. 

Ferrara’s testimony due to an alleged conflict of interest. We 

hold that the district court’s ruling was well within its 

discretion.

A.

Skidmore argues that the district court erred in 

concluding that the deposit copy of “Taurus” defines the 

scope of the protected copyright under the 1909 Act and that 

sound recordings of “Taurus” as performed by Spirit could 

not be used to prove substantial similarity. Because the 

copyright of “Taurus” was registered in 1967, the 1909 Act 

applies. See Twentieth Century Fox Film Corp. v. Entm’t 

Distrib., 429 F.3d 869, 876 (9th Cir. 2005) (considering 

infringement claims under the 1909 Act because the 

copyrighted work “was published before the January 1, 

1978, effective date of the 1976 Copyright Act”). We review 

de novo legal questions such as the appropriate scope of 

copyright protection. See Rentmeester, 883 F.3d at 1116.

The scope of copyright protection for musical works has 

been in flux throughout the different versions of the 

Copyright Act. In 1831, the Copyright Act of 1790 was 
26 SKIDMORE V. LED ZEPPELIN

amended and copyright protection was extended to musical 

compositions for the first time. Copyright Act of 1831, 

4 Stat. 436 (1831) (repealed 1909). Musical protection 

under the 1831 Act only extended to the sheet music itself. 

See Goldstein v. California, 412 U.S. 546, 564 (1973). 

Around the turn of the twentieth century, devices called 

piano player rolls were invented, which allowed songs to be 

recreated mechanically on a piano. See White-Smith Music 

Publ’g Co. v. Apollo Co., 209 U.S. 1, 10–11 (1908). In its 

1908 White-Smith opinion, the Court held that the only 

protected musical expression under the Copyright Act of 

1831 was sheet music, and that infringement could only 

occur by duplicating the sheet music. Id. at 17. Therefore, 

the makers of piano player rolls did not infringe the 

copyrights of musical composers. Id.

Congress promptly enacted the Copyright Act of 1909. 

Copyright Act of 1909, 35 Stat. 1075 (1909) (repealed 1978) 

(the “1909 Act”). In this 1909 iteration, Congress made 

clear that the scope of protection “[t]o print, reprint, publish, 

copy, and vend the copyrighted work” under § 1(a) extended 

to “any arrangement or setting of [the musical composition] 

or of the melody of it in any system of notation or any form 

of record in which the thought of an author may be recorded 

and from which it may be read or reproduced.” 1909 Act 

§ 1(e).

“Under the 1909 Act, an unpublished work was 

protected by state common law copyright from the moment 

of its creation until it was either published or until it received 

protection under the federal copyright scheme.” ABKCO 

Music, Inc. v. LaVere, 217 F.3d 684, 688 (9th Cir. 2000) 

(quoting La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 952 

(9th Cir. 1995), superseded by statute on other grounds, 

17 U.S.C. § 303(b) (1997)). A work could receive federal 
SKIDMORE V. LED ZEPPELIN 27

copyright protection either through registration and 

submission of a deposit copy, 1909 Act § 10, or through 

publication, id. § 9. Distributing phonorecords did not 

constitute publication under the 1909 Act, so musical 

compositions were only published if the sheet music were 

also published.9 ABKCO, 217 F.3d at 688. Additionally, the 

Copyright Office did not accept sound recordings as deposit 

copies under the 1909 Act. See M. Nimmer & D. Nimmer, 

1 Nimmer on Copyright § 2.05[A] (2017).

In 1972, Congress extended copyright protection to 

sound recordings as separate copyrightable works from 

musical compositions. 17 U.S.C. § 102(a)(7). The 

Copyright Act was again amended in 1976 and this 

amendment allowed musical composers to submit a 

recording rather than sheet music as the deposit copy for a 

musical composition. 17 U.S.C. §§ 407, 408 (1976).

Skidmore argues that under the 1909 Act, a deposit copy 

is purely archival in nature, whereas Defendants argue that 

for unpublished works, the deposit copy defines the scope of 

the copyright. This is an issue of first impression in our 

circuit as well as our sister circuits. One district court 

considered the issue prior to this case and concluded that for 

unpublished works under the 1909 Act, the deposit copy 

defines the scope of the copyright. See Williams v. 

Bridgeport Music, 2014 WL 7877773, at *6–10 (C.D. Cal. 

 9 We held in La Cienega that the sale and distribution of sound 

recordings in phonorecords constituted a publication. 53 F.3d at 953. 

After that decision, Congress passed a law stating that the distribution of 

phonorecords before 1978 did not count as publication. 17 U.S.C. 

§ 303(b). We subsequently held in ABKCO that La Cienega was an 

incorrect statement of law and that § 303 retroactively applied. See 

ABKCO, 217 F.3d at 691–92.
28 SKIDMORE V. LED ZEPPELIN

Oct. 30, 2014). On appeal, we declined to reach the issue. 

Williams v. Gaye, 895 F.3d 1106, 1121 (9th Cir. 2018).

Skidmore argues that the express purpose of the 1909 

Act was to overturn White-Smith and extend copyright 

protection beyond sheet music. Specifically, Skidmore 

relies on § 1(e), which extended copyright protection to “any 

system of notation or any form of record in which the 

thought of an author may be recorded.” § 1(e). But, as 

Defendants point out, this actually defines the forms an 

infringing copy can take, rather than the scope of what can 

be copyrighted. § 1(a), (e). Therefore, although the 1909 

Act clearly extended copyright law to protect against 

infringement beyond mere reproduction of the sheet 

music—in contravention of White-Smith—it did not clearly 

state that copyrighted works could be anything other than 

published sheet music or the musical composition 

transcribed in the deposit copy. Indeed, “in order to claim 

copyright in a musical work under the 1909 Act, the work 

had to be reduced to sheet music or other manuscript form.” 

Nimmer on Copyright § 2.05[A] at 2–62 (2017).

Skidmore also cites to a host of cases to support his 

argument, but these cases are distinguishable. Skidmore 

relies primarily on Three Boys, 212 F.3d at 486–87. In Three 

Boys, appellants argued that because the deposit copy was 

incomplete—contrary to the 1909 Act’s requirement that a 

“complete copy” be deposited—subject matter jurisdiction 

did not exist. Id. at 486. In response, we observed that an 

expert had testified that the essential elements of the musical 

composition were intact in the deposit copy; therefore we 

declined to overturn the jury’s finding that the deposit copy 

was “complete” because there was no intent to defraud and 

any inaccuracies in the deposit copy were minor. Id. at 486–

87. Since Three Boys dealt with whether the deposit copy 
SKIDMORE V. LED ZEPPELIN 29

adequately satisfied the “complete copy” statutory 

requirement, it is not directly on point. Nonetheless, 

Skidmore argues that we should extrapolate from language 

in Three Boys that the expert “even played the deposit copy” 

to conclude that a recording was also played, and that the 

recording was used for purposes of evaluating substantial 

similarity. Id. While the evidentiary presentation in Three 

Boys may support Skidmore’s claim that typically sound 

recordings have been used in infringement trials under the 

1909 Act, our resolution of the “complete copy” issue did 

not create binding precedent that copyright protection 

extended to sound recordings under the 1909 Act. Id.

Skidmore also relies on three other cases to support his 

argument that copyright protection under the 1909 Act 

extends beyond sheet music, none of which are helpful. One 

of the cases cited by Skidmore concludes that a copyright 

obtained via publication is not invalidated by failure to 

deposit promptly a copy. Washingtonian Pub. Co. v. 

Pearson, 306 U.S. 30, 41–42 (1939). The deposit copy 

carries less importance for published works, however, so this 

conclusion is not particularly instructive. 2 Nimmer on 

Copyright § 7.17[A] (citing 17 U.S.C. § 704(d) for the 

proposition that either the original or a copy of the deposit 

copy must be kept for unpublished works). Unlike for 

unpublished works, a deposit copy is not necessary to secure 

copyright in published works. 1909 Act § 9.

The other two cases both deal with copyright issues 

under the 1976 Act. See Bridgeport Music, Inc. v. UMG 

Recordings, Inc., 585 F.3d 267, 276 (6th Cir. 2009); Nat’l 

Conference of Bar Examiners v. Multistate Legal Studies, 

Inc., 692 F.2d 478, 482–83 (7th Cir. 1982). Neither of these 

cases help us determine whether the deposit copy for 

unpublished works defines the scope of copyright protection 
30 SKIDMORE V. LED ZEPPELIN

under the 1909 Act. The 1976 Act includes a provision 

providing that federal copyright protection attaches upon

fixation of a work to any tangible medium, which can 

include a sound recording. 17 U.S.C. § 102(a). This 

provision, however, was not a part of the 1909 Act. As a 

result, although it makes sense in the context of the 1976 Act 

to look at a recording for evidence of what the composition 

includes because federal copyright protection attaches when 

the work is recorded, it makes significantly less sense to do 

so for the 1909 Act.

The cases Defendants offer in support of their argument 

are also not directly on point. Some do not pertain to the 

1909 Act, which is problematic for the reasons discussed 

above. See, e.g., White-Smith, 209 U.S. at 15–16; Merrell v. 

Tice, 104 U.S. 557, 558 (1881). More persuasive are the 

cases that, in the context of discussing the current copyright 

scheme, opined that one of the purposes of the deposit 

requirement is to provide “sufficient material to identify the 

work in which the registrant claims a copyright.” Data Gen. 

Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1161–

63 (1st Cir. 1994); see also Nicholls v. Tufenkian 

Import/Export Ventures, Inc., 367 F. Supp. 2d. 514, 520 

(S.D.N.Y. 2005). These cases support Defendants’ 

contention that the deposit copy defines the scope of the 

copyright, but as in Three Boys the ultimate holding in these 

cases was that minor errors in the deposit copy do not 

invalidate a copyright. See Data Gen. Corp., 36 F.3d at 

1163.

As further support for their position, Defendants contend 

that the treatment of deposit copies under the 1909 Act 

supports their argument that for unpublished works, the 

deposit copy defines the scope of the copyright. The 1909 

Act prohibits the destruction of the deposit copies of 
SKIDMORE V. LED ZEPPELIN 31

unpublished works without notice to the copyright owner. 

See 1909 Act §§ 59–60; Report of the Register on the 

General Revision of the U.S. Copyright Law at 81 (1961). 

Additionally, the Register of Copyright’s policy is to retain 

access to unpublished works for the full copyright term. See 

Report of the Register on the General Revision of the U.S. 

Copyright Law at 80–82 (1961).10

We are persuaded that for unpublished musical works 

under the 1909 Act, the deposit copy defines the scope of the 

copyright. Overall, the structure of the 1909 Act 

demonstrates that the deposit copy encompasses the scope of 

the copyright for unpublished works, as the deposit copy 

must be filed not only to register the copyright, but for the 

copyright to even exist. The 1909 Act states that “copyright 

may also be had of the works of an author of which copies 

are not reproduced for sale, by the deposit, with claim of 

copyright, of one complete copy of such work.” 1909 Act 

§ 11 (emphasis added). Because the 1909 Act makes the 

existence of copyright dependent on the deposit copy, it 

makes sense that the deposit copy also defines the scope of 

the copyright. It was not until the 1976 Act that common 

law copyright was federalized and copyright attached at the 

creation of the work. Recognizing the importance of deposit 

copies for unpublished works, Congress and the Register of 

Copyrights have taken care to ensure the preservation of 

deposit copies. 1909 Act §§ 59–60; Report of the Register 

on the General Revision of the U.S. Copyright Law at 80–82 

(1961). Similarly, even under later versions of the Copyright 

 10 In the 1976 Act, Congress prohibited the destruction of deposit 

copies of unpublished works during the copyright term unless a 

reproduction had been made. 17 U.S.C. § 704(d). See H.R. Rep. No. 

94-1476, 94th Cong., 2d Sess. 172 (1976) (recognizing “the unique value 

and irreplaceable nature of unpublished deposits”).
32 SKIDMORE V. LED ZEPPELIN

Act, the purpose of deposit copies has been described as 

providing a way “to identify the work in which the registrant 

claims a copyright.” Data Gen. Corp., 36 F.3d at 1161–62. 

Given that copyright protection under the 1909 Act did not 

attach until either publication or registration, we conclude 

that for unpublished works the deposit copy defines the 

scope of the copyright.

Skidmore puts forth three policy arguments, but they do 

not alter our conclusion as they do not override the weight 

of the 1909 Act’s statutory scheme and legislative history. 

First, Skidmore argues that it is challenging to compare a 

sound recording of the infringing work to a deposit copy of 

the infringed work. While many copyrighted works, such as 

books, can be easily formatted to satisfy the deposit copy 

requirement, musical works are not as well reflected in 

deposit copies. This makes the intrinsic test for substantial 

similarity especially challenging when comparing a deposit 

copy to a sound recording, as the intrinsic test is concerned 

with the general “total concept and feel” of a work. See 

Three Boys, 212 F.3d at 485. Second, Skidmore argues that 

our conclusion is biased against musicians who do not read 

music and could not possibly have written the deposit copies 

of their own songs. It is not uncommon for musicians who 

are composing songs to not know how to read music. 

Skidmore argues that for musicians who do not read music 

it would be overly time consuming and expensive to make 

accurate deposit copy sheet music going forward. For new 

works, however, sound recordings can be deposited as the 

deposit copy, so we are not overly concerned with the costs 

of transcribing deposit copies for new compositions. See 

17 U.S.C. §§ 407, 408. Finally, Skidmore raises the 

question of whether a copyright claim would be provable if 

a deposit copy were lost or destroyed. These policy 

arguments do not undermine the statutory framework that 
SKIDMORE V. LED ZEPPELIN 33

leads us to conclude that the deposit copy defines the scope 

of a copyrighted work for unpublished musical works under 

the 1909 Act.11

B.

Skidmore argues that the district court erred by failing to 

allow recordings of “Taurus” to be played to prove access. 

This was an evidentiary ruling, which we review for abuse 

of discretion. United States v. Hinkson, 585 F.3d 1247, 1267 

(9th Cir. 2009). Although Skidmore’s counsel was 

permitted to play recordings for Page outside the presence of 

the jury, who was then questioned about them in front of the 

jury, Skidmore argues that the jury could not assess Page’s 

credibility without observing him listening to the recordings 

and then answering questions about the recordings.

As the jury ultimately found that both Plant and Page had 

access to “Taurus,” any error in precluding the recordings 

was harmless. See United States v. Edwards, 235 F.3d 1173, 

1178–79 (9th Cir. 2000) (stating that an evidentiary ruling is 

reversed only if the error “more likely than not affected the 

verdict”). As this issue will likely arise again at retrial, we 

address whether the district court abused its discretion.

The district court excluded the sound recordings under 

Federal Rule of Evidence 403, finding that “its probative 

value is substantially outweighed by danger of . . . unfair 

prejudice, confusing the issues, [or] misleading the jury 

. . . .” Fed. R. Evid. 403. Here, the district court abused its 

discretion in finding that it would be unduly prejudicial for 

 11 We leave open the possibility that where the deposit copy has been 

lost or destroyed, an original sound recording may be used as evidence 

of the scope of the copyright under the 1909 Act.
34 SKIDMORE V. LED ZEPPELIN

the jury to listen to the sound recordings in order to assess 

Page’s access to “Taurus.” The district court acknowledged 

that the recordings were relevant to whether Page had access 

to “Taurus,” as Page would have heard and allegedly copied 

a recording of “Taurus.” The district court was concerned, 

however, that allowing the jury to hear the recordings would 

confuse them.

Skidmore argues that by not allowing the jury to observe 

Page listening to the recordings of “Taurus,” the effect of the 

court’s ruling was to decrease the probative value of 

Skidmore’s questioning of Page. Although the jury could 

still draw conclusions and inferences from Page’s demeanor 

during his testimony, allowing the jury to observe Page 

listening to the recordings would have enabled them to 

evaluate his demeanor while listening to the recordings, as 

well as when answering questions. Limiting the probative 

value of observation was not proper here, as the risk of unfair 

prejudice or jury confusion was relatively small and could 

have been reduced further with a proper admonition. For 

example, the district court could have instructed the jury that 

the recordings were limited to the issue of access and that 

they were not to be used to judge substantial similarity. See 

United States v. W.R. Grace, 504 F.3d 745, 765 (9th Cir. 

2007) (providing that “the court substantially 

underestimated the . . . potential efficacy of a limiting 

instruction”). Given the probative value of the information 

and the relatively low risk of unfair prejudice, we conclude 

that the district court abused its discretion in excluding the 

evidence. See Fed. R. Evid. 403.

C.

Skidmore also argues that the district court abused its 

discretion by failing to disqualify Defendants’ expert Dr. 

Ferrara or to give a negative inference instruction to the jury 
SKIDMORE V. LED ZEPPELIN 35

because he previously had been hired by Rondor to compare 

“Stairway to Heaven” to the original recording of “Taurus.” 

District courts have “broad discretion” in making 

evidentiary rulings, including whether to allow expert 

testimony. Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 

(9th Cir. 1980). We thus review for abuse of discretion the 

district court’s decision to allow expert testimony. See id.

The district court did not abuse its discretion when it 

denied Skidmore’s request for sanctions against Dr. Ferrara 

and excluded his testimony. Skidmore’s motion was 

rejected as untimely and improperly filed. Even if the 

motion had been timely filed, the district court did not err in 

denying the motion because there was no conflict that 

merited monetary sanctions or exclusion of Dr. Ferrara’s 

testimony. Skidmore argues that Dr. Ferrara effectively 

switched sides in this case. We have 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. See Erickson v. Newmar 

Corp., 87 F.3d 298, 300 (9th Cir. 1996). Here, even if Dr. 

Ferrara switched sides, there was no showing that Dr. 

Ferrara had confidential information. Rondor retained Dr. 

Ferrara to obtain his opinion on two publicly available songs, 

and he volunteered to share his conclusion with Skidmore. 

While he did not produce a report from this prior 

consultation, he did testify that he believed he 

communicated his opinion telephonically to Rondor rather 

than in a written report.

Additionally, there is no evidence presented that Dr. 

Ferrara did switch sides. Rondor does not have an interest 

in this case, nor does Universal Music, and Rondor waived 

any potential conflict that might arise from having Dr. 

Ferrara testify as an expert for Defendants. Skidmore 
36 SKIDMORE V. LED ZEPPELIN

contends that Universal Music was working for Hollenbeck, 

which owed a fiduciary duty to Skidmore as a publisher of 

Spirit’s music. He presents no evidence, however, that 

Hollenbeck owed a fiduciary duty to Skidmore. See Cafferty 

v. Scotti Bros. Records, Inc., 969 F. Supp. 193, 205 

(S.D.N.Y. 1997) (“In the absence of special circumstances, 

no fiduciary relationship exists between a music publisher 

and composers as a matter of law.” (citation omitted)). On 

remand, in light of the current record, there is no basis for 

excluding Dr. Ferrara’s testimony, giving an adverse jury 

instruction, or imposing monetary sanctions.

V.

Defendants cross-appeal the district court’s denial of 

their motions for attorneys’ fees and costs. In light of our 

disposition, we vacate the district court’s denial of attorneys’ 

fees and costs under 17 U.S.C. § 505. In the event 

Defendants’ prevail on remand, they may renew their 

motions.

VI.

Given our disposition, we need not address the 

remaining arguments raised by the parties. To be clear, we 

do not consider whether the district court abused its 

discretion in determining which version of “Taurus” to play 

in response to the jury’s request during jury deliberations. 

And, we do not address whether the district court’s 

imposition of time limits violated due process. We note, 

however, that strict time limits are generally disfavored at 

trial. See Monotype Corp. PLC v. Int’l Typeface Corp., 

43 F.3d 443, 450 (9th Cir. 1994). Given the complex nature 

of this case, we are troubled by the strict imposition of time 

limits and the relative inflexibility of the district court once 

Skidmore ran out of time. On remand, if the district court 
SKIDMORE V. LED ZEPPELIN 37

again imposes time limits for the retrial it should ensure that 

each side has adequate time to present its witnesses and 

arguments.

VII.

We vacate the amended judgment in part and remand for 

a new trial against Defendants because of the deficiencies in 

the jury instructions on originality and the district court’s 

failure to include a selection and arrangement jury 

instruction. Additionally, although harmless in this instance, 

we conclude that the district court abused its discretion by 

not allowing the sound recordings of “Taurus” to be played 

to prove access. Further, at any retrial, the district court 

should reconsider whether an inverse ratio jury instruction is 

warranted. The district court did not err, however, in 

limiting the copyright of “Taurus” to its deposit copy or in 

allowing Dr. Ferrara to testify. Finally, we vacate the order 

denying Defendants’ motions for attorneys’ fees and costs. 

Given our disposition, there is no need to address the 

remaining issues raised by Skidmore.

VACATED in part and REMANDED for a new trial.

Appellant shall recover his costs on appeal.