                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL SKIDMORE, as Trustee for       No. 16-56057
the Randy Craig Wolfe Trust,
                Plaintiff-Appellant,      D.C. No.
                                       2:15-cv-03462-
                 v.                      RGK-AGR

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.




MICHAEL SKIDMORE, as Trustee for       No. 16-56287
the Randy Craig Wolfe Trust,
                 Plaintiff-Appellee,      D.C. No.
                                       2:15-cv-03462-
                 v.                      RGK-AGR

WARNER/CHAPPELL MUSIC, INC.,
           Defendant-Appellant,          OPINION
2                SKIDMORE V. LED ZEPPELIN


                   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.

        Appeal from the United States District Court
           for the Central District of California
        R. Gary Klausner, District Judge, Presiding

     Argued and Submitted En Banc September 23, 2019
                 San Francisco, California

                    Filed March 9, 2020

Before: Sidney R. Thomas, Chief Judge, and M. Margaret
 McKeown, William A. Fletcher, Johnnie B. Rawlinson,
    Carlos T. Bea, Sandra S. Ikuta, Mary H. Murguia,
   Jacqueline H. Nguyen, Paul J. Watford, Andrew D.
      Hurwitz and Bridget S. Bade, Circuit Judges.

                Opinion by Judge McKeown;
               Concurrence by Judge Watford;
    Partial Concurrence and Partial Dissent by Judge Ikuta
                  SKIDMORE V. LED ZEPPELIN                          3

                          SUMMARY *


                            Copyright

    The en banc court affirmed the district court’s judgment
after a jury trial in favor of Led Zeppelin in a copyright
action alleging that the opening notes of Stairway to Heaven
infringed Taurus, a song written by guitarist Randy Wolfe
and performed by his band Spirit.

    In Part I, the en banc court held that the 1909 Copyright
Act, which does not protect sound recordings, rather than the
1976 Copyright Act, controlled its analysis because the
copyright at issue was for the unpublished musical
composition of Taurus, which was registered in 1967. The
scope of the copyright in the unpublished work was defined
by the deposit copy, which in the case of Taurus consisted
of only one page of music. Accordingly, it was not error for
the district court to decline plaintiff’s request to play sound
recordings of the Taurus performance that contained further
embellishments or to admit the recordings on the issue of
substantial similarity.

    In Part II, the en banc court held that proof of copyright
infringement required plaintiff to show: (1) that he owned a
valid copyright in Taurus; and (2) that Led Zeppelin copied
protected aspects of the work. The en banc court explained
that the second prong contains two separate components:
“copying” and “unlawful appropriation.” A plaintiff may
prove copying circumstantially by showing access and

    *
      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

striking similarity.        The hallmark of “unlawful
appropriation” is that the works share substantial
similarities. Both an extrinsic and an intrinsic test must be
satisfied for the works to be deemed substantially similar.

   In Part III, the en banc court addressed the district court’s
exclusion of sound recordings of Taurus as relevant to prove
access but too prejudicial because of the risk that the jury
would confuse access with substantial similarity. The en
banc court concluded that this evidentiary issue was moot
because the jury found access.

    In Part IV, the en banc court addressed three jury
instruction issues: (1) the failure to give an inverse ratio rule
instruction; (2) the sufficiency of the court’s originality
instructions; and (3) the failure to give a selection and
arrangement instruction. In Part IV.A, joining the majority
of circuits, the en banc court rejected the inverse ratio rule,
which requires a lower standard of proof of substantial
similarity when a high degree of access is shown. The en
banc court overruled circuit precedent to the contrary. In
Part IV.B, the en banc court held that the district court
properly instructed the jury on originality. In Part IV.C.1,
the en banc court concluded that the failure to give a
selection and arrangement instruction would be reviewed for
plain error. In Part IV.C.2, the en banc court held that the
district court did not commit plain error. In Part IV.C.3, the
en banc court held that the district court did not commit any
error because plaintiff did not present a selection and
arrangement theory at trial. In Part IV.C.4, the en banc court
held that, even though the district court did not instruct the
jury on selection and arrangement, its instructions, as a
whole, fairly and adequately covered plaintiff’s argument for
extrinsic similarity between Taurus and Stairway to Heaven.
                SKIDMORE V. LED ZEPPELIN                     5

    In Part V, the en banc court held that the district court
did not err in setting trial time limits, responding to a jury
question, admitting expert testimony, or declining to award
attorneys’ fees.

    Concurring, Judge Watford wrote that he joined the
court’s opinion, with the exception of section IV.C, because
he saw no reason to decide whether plaintiff adequately
preserved his request for a selection-and-arrangement
instruction when, even if such an instruction had been given,
no reasonable jury could have found infringement.

    Concurring in part and dissenting in part, Judge Ikuta,
joined by Judge Bea, wrote that she dissented from Part
IV(B) to (C) because, without plaintiff’s requested
instruction on selection and arrangement, the jury was
deprived of the opportunity to consider plaintiff’s central
theory of the case, and the instructions given to the jury were
misleading.


                         COUNSEL

Francis Malofiy (argued) and Alfred Joseph Fluehr, Francis
Alexander LLC, Media, Pennsylvania, for Plaintiff-
Appellant.

Peter J. Anderson (argued), Law Offices of Peter J.
Anderson, Los Angeles, California; Helene M. Freeman,
Phillips Nizer LLP, New York, New York; for Defendants-
Appellees.

Edwin F. McPherson and Tracy B. Rane, McPherson Rane
LLP, Los Angeles, California, for Amici Curiae 123
Songwriters, Composers, Musicians, and Producers;
6               SKIDMORE V. LED ZEPPELIN

Nashville Songwriters Association International (NSAI);
and Songwriters of North America (SONA).

Eugene Volokh, Mayer Brown LLP, Los Angeles,
California; Danielle M. Aguirre and Erich C. Carey,
National Music Publishers’ Association, Washington, D.C.;
for Amici Curiae Recording Industry Association of
America and National Music Publishers Association.

Sean M. O’Connor, Center for the Protection of IP,
Arlington, Virginia; Lateef Mtima and Steven D. Jamar,
Institute for Intellectual Property and Social Justice, Inc.

Professor Mark A. Lemley, Stanford Law School, Center for
Internet & Society, Stanford, California, for Amici Curiae
19 Intellectual Property Professors.

Kenneth D. Freundlich, Freundlich Law, Encino, California,
for Amici Curiae Musicologists.

Joseph H. Hunt, Assistant Attorney General; Nicola T.
Hanna, United States Attorney; Scott R. McIntosh and
Daniel Tenny, Appellate Staff; Civil Division, United States
Department of Justice, Washington, D.C.; Regan A. Smith,
General Counsel and Associate Register of Copyrights;
Jason E. Sloan, Assistant General Counsel; Jalyce E.
Mangum, Attorney-Advisor; United States Copyright
Office, Washington, D.C.; for Amicus Curiae United States.

W. Michael Hensley, AlvaradoSmith, Santa Ana, California,
for Amicus Curiae Pullman Group LLC and Structured
Asset Sales LLC.
                SKIDMORE V. LED ZEPPELIN                    7

                         OPINION

McKEOWN, Circuit Judge, with whom THOMAS, Chief
Judge,     FLETCHER,        RAWLINSON,      MURGUIA,
NGUYEN, Circuit Judges, join in full, and with whom
WATFORD, Circuit Judge, joins except as to Part IV.C, and
with whom HURWITZ, Circuit Judge, joins except as to
Parts IV.C.3 and IV.C.4, and with whom BADE, Circuit
Judge, joins except as to Part IV.C.3:

    Stairway to Heaven has been called the greatest rock
song of all time. Yet, hyperbole aside, nearly 40 years after
the English rock band Led Zeppelin released its hit
recording, the song is not impervious to copyright
challenges. The estate of guitarist Randy Wolfe claims that
Led Zeppelin and its guitarist Jimmy Page and vocalist
Robert Plant copied portions of Taurus, a song written by
Wolfe and performed by his band Spirit.

    This appeal stems from the jury’s verdict in favor of Led
Zeppelin and a finding that the two songs are not
substantially similar. Like the jury, we don’t need to decide
whether Stairway to Heaven has a place in the annals of
iconic rock songs. Instead, we address a litany of copyright
issues, including the interplay between the 1909 and 1976
Copyright Acts, the inverse ratio rule, the scope of music
copyright, and the standards for infringement.

    The 1909 Copyright Act, which does not protect sound
recordings, controls our analysis. The copyright at issue is
for the unpublished musical composition of Taurus, which
was registered in 1967. The unpublished work is defined by
the deposit copy, which in the case of Taurus consists of only
one page of music. We also join the majority of circuits in
rejecting the inverse ratio rule and overrule our precedent to
the contrary. Finally, we are not persuaded by the challenges
8               SKIDMORE V. LED ZEPPELIN

to jury instructions and various other evidentiary and trial
rulings. We affirm the district court’s entry of judgment in
favor of Led Zeppelin and related parties.

                      BACKGROUND

    Randy Wolfe, professionally known as Randy
California, wrote the instrumental song Taurus in 1966 or
1967. He was a guitarist in the band Spirit. Spirit signed a
recording contract in August 1967 and released its first
eponymous album—which included Taurus—a few months
later. Wolfe also entered into an Exclusive Songwriter’s and
Composer’s Agreement with Hollenbeck Music Co.
(“Hollenbeck”). In December 1967, Hollenbeck registered
the copyright in the unpublished musical composition of
Taurus, listing Wolfe as the author. As required for
registration of an unpublished work under the 1909
Copyright Act, which was in effect at the time, Hollenbeck
transcribed Taurus and deposited one page of sheet music
(the “Taurus deposit copy”), with the United States
Copyright Office.

    Around the same time, across the Atlantic, another rock
band, Led Zeppelin, was formed by Jimmy Page, Robert
Plant, John Paul Jones, and John Bonham. Led Zeppelin
released its fourth album in late 1971. The untitled album,
which became known as “Led Zeppelin IV,” contained the
now iconic song Stairway to Heaven. Stairway to Heaven
was written by Jimmy Page and Robert Plant.

    It is undisputed that Spirit and Led Zeppelin crossed
paths in the late 1960s and the early 1970s. The bands
performed at the same venue at least three times between
1968 and 1970. Led Zeppelin also performed a cover of a
Spirit song, Fresh Garbage. But there is no direct evidence
                   SKIDMORE V. LED ZEPPELIN                             9

that the two bands toured together, or that Led Zeppelin band
members heard Spirit perform Taurus.

    Wolfe passed away in 1997. After his death, Wolfe’s
mother established the Randy Craig Wolfe Trust (the
“Trust”) 1 and served as the trustee until she passed away.
Neither Wolfe nor his mother filed a suit regarding Stairway
to Heaven. Michael Skidmore became a co-trustee of the
Trust in 2006.

    Fast forward forty-three years from the release of
Stairway to Heaven to May 2014. Skidmore filed a suit
alleging that Stairway to Heaven infringed the copyright in
Taurus, naming as defendants 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.
(“Warner/Chappell”), Atlantic Recording Corporation, and
Rhino Entertainment Co. (collectively “Led Zeppelin”). 2
One may wonder how a suit so long in the making could
survive a laches defense. The Supreme Court answered this
question in Petrella v. Metro-Goldwyn-Mayer, Inc., which
clarified that laches is not a defense where copyright
infringement is ongoing. 572 U.S. 663, 668 (2014).

   Skidmore alleged direct, contributory, and vicarious
copyright infringement. He also sought equitable relief for
a claim that he titled “Right of Attribution—Equitable

    1
       Led Zeppelin does not challenge on appeal that all of Wolfe’s
intellectual property rights, including the ownership interest in Taurus,
were transferred to the Trust.
    2
      The case was filed in the Eastern District of Pennsylvania and later
transferred to the proper venue, the Central District of California.
Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581, 589–90 (E.D. Pa. 2015).
10              SKIDMORE V. LED ZEPPELIN

Relief—Falsification of Rock n’ Roll History.” Skidmore’s
claims are not based on the entire Taurus composition.
Rather, Skidmore claims that the opening notes of Stairway
to Heaven are substantially similar to the eight-measure
passage at the beginning of the Taurus deposit copy:




     The claimed portion includes five descending notes of a
chromatic musical scale. These notes are represented on the
piano as a set of adjacent black and white keys, from right to
left. The beginning of Stairway to Heaven also incorporates
a descending chromatic minor chord progression in A minor.
However, the composition of Stairway to Heaven has a
different ascending line that is played concurrently with the
descending chromatic line, and a distinct sequence of pitches
in the arpeggios, which are not present in Taurus.

   Led Zeppelin disputed ownership, access, and
substantial similarity. Led Zeppelin also alleged affirmative
defenses, including independent creation, unclean hands,
and laches.
                SKIDMORE V. LED ZEPPELIN                    11

     At the close of discovery, Led Zeppelin moved for
summary judgment. The district court granted the motion in
part and denied it in part. The district court dismissed the
claims against defendants John Paul Jones, Super Hype
Publishing, and Warner Music Group because they had not
performed or distributed Stairway to Heaven within the
three-year statute of limitations period preceding the filing
of the complaint. The district court also granted summary
judgment to Led Zeppelin on Skidmore’s “Right of
Attribution—Equitable Relief: Falsification of Rock n’ Roll
History” claim. Although the claim was “creatively termed”
and “inventive” according to the district court, a right of
attribution claim under the Copyright Act extends only to
visual arts.

    The district court also ruled that under the 1909 Act, the
scope of the copyright was circumscribed by the musical
composition transcribed in the Taurus deposit copy. Thus,
only the one-page Taurus deposit copy, and not a sound
recording, could be used to prove substantial similarity
between Taurus and Stairway to Heaven.

    The district court granted Led Zeppelin’s motion in
limine to exclude Taurus sound recordings and expert
testimony based on those recordings. The district court
again concluded that the Taurus deposit copy, rather than
any recordings of Spirit’s performance of Taurus, formed
the sole benchmark for determining substantial similarity.
The district court found that there were triable issues of fact
relating to ownership, access, substantial similarity, and
damages.

   Against the backdrop of these rulings, the trial lasted five
days. Two key issues predominated: access to Taurus by
Led Zeppelin band members and substantial similarity.
12              SKIDMORE V. LED ZEPPELIN

      On the access question, the district court allowed
Skidmore to play various sound recordings of Taurus for
Page outside of the presence of the jury. Skidmore then
examined Page on access in front of the jury. Page testified
that he owned “a copy of the album that contains ‘Taurus,’
. . . in [his] collection,” while denying “any knowledge of
‘Taurus.’”

    The substantial similarity question pitted two expert
musicologists against each other. Skidmore’s expert,
Dr. Alexander Stewart, analyzed, one by one, five categories
of similarities. Dr. Stewart acknowledged that a chromatic
scale and arpeggios are common musical elements. But he
found Taurus and Stairway to Heaven to be similar because
the descending chromatic scales in the two compositions
skip the note E and return to the tonic pitch, A, and the notes
in the scale have the same durations. Then he pointed to
three two-note sequences—AB, BC, and CF#—that appear
in both compositions. In his view, the presence of successive
eighth-note rhythms in both compositions also made them
similar. Finally, he testified that the two compositions have
the same “pitch collection,” explaining that certain notes
appear in the same proportions in the beginning sequence of
both works.

    In sum, Dr. Stewart claimed that five musical elements
in combination were copied because these elements make
Taurus unique and memorable, and these elements also
appear in Stairway to Heaven. Skidmore’s closing argument
reinforced these points. Neither Dr. Stewart nor Skidmore’s
counsel argued that the categories of similarities were
selected and arranged to form protectable expression in the
design, pattern, or synthesis of the copyrighted work. Nor
did they make a case that a particular selection and
                   SKIDMORE V. LED ZEPPELIN                          13

arrangement of musical elements were copied in Stairway to
Heaven.

    Led Zeppelin’s expert, Dr. Lawrence Ferrara, testified
that the two compositions are completely distinct. To
highlight the marked differences in the compositions, he
presented the following exhibit, which juxtaposed the
claimed portion of Taurus against Stairway to Heaven: 3




    Dr. Ferrara testified that the similarities claimed by
Skidmore either involve unprotectable common musical
elements or are random. For example, Dr. Ferrara explained
that the similarity in the three two-note sequences is not
musically significant because in each song the sequences

     3
       The duration of the notes in the Taurus deposit copy are halved in
this exhibit to allow a side-by-side comparison of the two compositions.
14                 SKIDMORE V. LED ZEPPELIN

were preceded and followed by different notes to form
distinct melodies. He described the purported similarity
based on these note sequences as akin to arguing that “crab”
and “absent” are similar words because they both have the
letter pair “ab.” He also testified that the similarity in the
“pitch collection” is not musically meaningful because it is
akin to arguing that the presence of the same letters in
“senator” and “treason” renders the words similar in
meaning.

    At the close of trial, the district court discussed with
counsel the intended jury instructions. The district court did
not give the proposed instructions on the inverse ratio rule
and the selection and arrangement of unprotectable
elements. Skidmore objected to the district court’s decision
to omit an inverse ratio instruction but did not do so as to the
omitted selection and arrangement instruction.

    The jury returned a verdict for Led Zeppelin. In special
interrogatories, the jury found that Skidmore owned the
copyright to Taurus and that Led Zeppelin had access to
Taurus, but that the two songs were not substantially similar
under the extrinsic test. Following the verdict, the district
court entered a judgment and an amended judgment. 4
Skidmore did not file any post-judgment motions
challenging the verdict, but timely appealed from the
amended judgment.

    Significantly, Skidmore does not make a substantial
evidence claim. Instead, he focuses on a handful of legal
     4
      The district court amended the judgment to include all defendants,
including those to whom the district court granted summary judgment.
Skidmore appeals from the amended judgment related to Led Zeppelin
and related parties, but waived any argument regarding the defendants
who prevailed at summary judgment.
                  SKIDMORE V. LED ZEPPELIN                         15

issues, challenging: (1) the ruling that substantial similarity
must be proven using the copyright deposit copy; (2) the
ruling that sound recordings could not be played to prove
access; (3) various jury instructions; (4) the imposition of
overall time limits for the trial; (5) the fact that the full
version of Taurus was played in response to the jury’s
request; and (6) the decision not to exclude or sanction
Dr. Ferrara because of a claimed conflict of interest.

    Warner/Chappell filed separate motions for attorneys’
fees and costs, which the district court denied.
Warner/Chappell timely cross-appealed and the two appeals
were consolidated.

    A panel of our court vacated the amended judgment in
part and remanded for a new trial. We granted rehearing en
banc. 5 Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir.
2018), reh’g en banc granted, 925 F.3d 999 (9th Cir. 2019).

                            ANALYSIS

I. THE 1909 COPYRIGHT ACT

    The world of copyright protection for music changed
dramatically during the twentieth century and those changes
dictate our analysis here. The baseline issue we address is
the scope of Wolfe’s copyright in the unpublished
composition Taurus, which was registered in 1967, between
the passage of the Copyright Act of 1909 (“1909 Act”) and

    5
       In connection with en banc proceedings, we received thoughtful
amicus briefs from a broad array of interested groups, including
intellectual property and musicology scholars; songwriters, composers,
musicians, and producers; recording companies and music publishers;
rights holders; and the U.S. government. We thank amici for their
participation.
16                SKIDMORE V. LED ZEPPELIN

the sweeping copyright reform adopted in the Copyright Act
of 1976 (“1976 Act”). We conclude that the 1909 Act
controls and that the deposit copy defines the scope of the
Taurus copyright.

         THE HISTORY OF COPYRIGHT PROTECTION FOR
         MUSICAL    COMPOSITIONS    AND    SOUND
         RECORDINGS

    Although it seems unthinkable today, musical
compositions were not explicitly subject to copyright in the
United States until 1831, when Congress added “musical
composition” to the list of statutorily protected works.
Copyright Act of 1831, ch. 16, § 1, 4 Stat. 436, 436 (repealed
1909). Thus, the “musical composition,” which was
understood to be a printed form of the music, joined the
statutory protection afforded to dramatic compositions,
maps, charts, engraving, photographs and other works.

    Between 1831 and the early 1900s, a number of
machines were invented that allowed mechanical
reproduction of a musical composition. Goldstein v.
California, 412 U.S. 546, 564 (1973). With the advent of
player pianos at the turn of the century, the question arose
whether copyright protection extended to the infringement
of musical compositions by perforated piano rolls. 6 The
Supreme Court held that the copyright statute barred the
unauthorized copying of a musical composition “in
intelligible notation,” but that it would be “strained and
artificial” to consider musical sounds coming from an

     6
      A piano roll is “a roll, usually of paper, on which music is
preserved in the form of perforations; it is recorded and played back
mechanically on a player piano or pianola.” Piano(la) roll, The New
Grove Dictionary of Jazz (Barry Kernfeld ed., 1994).
                 SKIDMORE V. LED ZEPPELIN                    17

instrument to be a copy. White-Smith Music Publ’g Co. v.
Apollo Co., 209 U.S. 1, 17–18 (1908). Justice Holmes
commented in his concurrence that “[o]n principle anything
that mechanically reproduces that collocation of sounds
ought to be held a copy, or, if the statute is too narrow, ought
to be made so by a further act.” Id. at 20.

    Congress stepped in to remedy the situation, perhaps
heeding Justice Holmes’s call. The Copyright Act of 1909—
landmark legislation that significantly revised copyright
law—categorized      mechanically-reproduced        musical
compositions, such as those played on player pianos and
phonograph players, as “copies” of the original composition.
1909 Act, ch. 320, § 1(e), 35 Stat. 1075, 1075 (1909)
(repealed 1976).

    The statute provided copyright protection against “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.” Id. Skidmore seizes
on this language to argue that the new legislation extended
copyright protection beyond sheet music. The text does not
support this reading. Although the 1909 Act extended
copyright protection against infringement beyond the mere
reproduction of the sheet music, Congress did not provide
that copyrighted works could be anything other than sheet
music or, for an unpublished work, the musical composition
transcribed in the deposit copy. 1909 Act §§ 5, 11.

    The Court reinforced this principle in Goldstein v.
California when it noted that the amendments insured that
composers of original musical works received adequate
protection, and that “records and piano rolls were to be
considered as ‘copies’ of the original composition . . . , and
could not be manufactured” without a specified royalty
18              SKIDMORE V. LED ZEPPELIN

payment. 412 U.S. at 565–66. The Court emphasized that
“composers were to have no control over the recordings
themselves,” which Congress considered “a component part
of a machine, capable of reproducing an original
composition,” or “renderings of original artistic
performance.” Id. at 566.

    Requiring more formalities than the current copyright
act, the procedures for obtaining copyright protection under
the 1909 Act were very specific. Registration for an
unpublished musical work could be obtained “by the deposit,
with claim of copyright, of one complete copy of such work”
with the Copyright Office. 1909 Act § 11. In contrast,
protection for a published work could be secured by affixing
a copyright notice “to each copy thereof published or offered
for sale in the United States by authority of the copyright
proprietor.” Id. § 9. Either way, distributing sound
recordings did not constitute publication under the 1909 Act,
so musical compositions were only published if the sheet
music also was published. See ABKCO Music, Inc. v.
LaVere, 217 F.3d 684, 688 (9th Cir. 2000). Significantly,
the Copyright Office did not even accept sound recordings
as deposit copies. 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.” 1 M.
Nimmer & D. Nimmer, Nimmer on Copyright (“Nimmer”)
§ 2.05[A] (2017).

    Sound recordings did not become subject to copyright
protection until 1972, and then only for the sound recordings
fixed on or after February 15, 1972. 17 U.S.C. § 301(c). The
amendment did nothing to change the requirements of the
1909 Act or the status of the Taurus copyright.

   The copyright requirements were changed dramatically
by the 1976 Copyright Act, which provided that public
                 SKIDMORE V. LED ZEPPELIN                    19

distribution of a sound recording qualified as publication of
a musical composition. Id. § 101. In other words,
composers could submit a recording rather than sheet music
as the deposit copy for a musical composition. The catch,
for this case, is that publication before the 1978 effective
date is not covered by the new statute.

        THE TAURUS DEPOSIT COPY

    The 1967 deposit copy of Taurus is a single page of sheet
music. Skidmore suggests that the copyright extends beyond
the sheet music; that is, the deposit copy is somehow
archival in nature and more of a reference point than a
definitive filing. This approach ignores the text of the statute
and the purpose of the deposit.

     We have outlined copyright protection under the 1909
Act as follows: “[A]n 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, 217 F.3d at
688 (quoting LaCienega Music Co. v. ZZ Top, 53 F.3d 950,
952 (9th Cir. 1995)). The referenced federal copyright
protection for unpublished works is found in the text of the
statute: “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
if it be a . . . musical composition . . . .” 1909 Act § 11.

    The text is clear—for unpublished works, the author
must deposit one complete copy of such work. The purpose
of the deposit is to make a record of the claimed copyright,
provide notice to third parties, and prevent confusion about
the scope of the copyright. See Data Gen. Corp. v.
Grumman Sys. Support Corp., 36 F.3d 1147, 1161–62 (1st
Cir. 1994) (the deposit requirement provides the “Copyright
20              SKIDMORE V. LED ZEPPELIN

Office with sufficient material to identify the work in which
the registrant claims a copyright . . . [and] prevent[s]
confusion about which work the author is attempting to
register”), abrogated on other grounds by Reed Elsevier,
Inc. v. Muchnick, 559 U.S. 154 (2010); Report of the
Register of Copyrights on the General Revision of the U.S.
Copyright Law 71 (1961) (one of the purposes of the deposit
is “to identify the work” being registered).

    Even before the 1909 Act, the Supreme Court stated that
one objective of the deposit was to permit inspection by
other authors “to ascertain precisely what was the subject of
copyright.” Merrell v. Tice, 104 U.S. 557, 561 (1881). At
the time that Taurus was registered, the Copyright Office’s
practice regarding applications to register unpublished
musical compositions was to consider “writ[ing] to the
applicant, pointing out that protection extends only to the
material actually deposited, and suggesting that in his own
interest he develop his manuscript to supply the missing
element.” Compendium of Copyright Office Practices
(“Copyright Office Compendium”) § 2.6.1.II.a (1st ed. 1967)
(emphasis added). The inescapable conclusion is that the
scope of the copyright is limited by the deposit copy.

    The practical treatment of deposit copies underscores
their importance. The 1909 Act prohibits destruction of
copies of unpublished works without notice to the copyright
owner. 1909 Act §§ 59–60. Buttressing this protection, the
Register of Copyright’s policy is to retain access to the
deposit copies of unpublished works for the full copyright
term. See Report of the Register of Copyrights on the
General Revision of the U.S. Copyright Law at 80–81.

    The cases Skidmore cites to suggest that the content of
the deposit copy may be supplemented are not instructive.
See, e.g., Washingtonian Publ’g Co. v. Pearson, 306 U.S.
                SKIDMORE V. LED ZEPPELIN                   21

30, 41–42 (1939) (addressing the failure to promptly submit
a deposit copy for a published work); Three Boys Music
Corp. v. Bolton, 212 F.3d 477, 486–87 (9th Cir. 2000)
(addressing whether an incomplete deposit copy contained
the “essential elements” of the musical composition such
that subject matter jurisdiction was proper). Nor do the cases
analyzing the 1976 Act illuminate the copyright scope
question under the 1909 Act. See Bridgeport Music, Inc. v.
UMG Recordings, Inc., 585 F.3d 267, 276 (6th Cir. 2009);
Nat’l Conference of Bar Exam’rs v. Multistate Legal Studies,
Inc., 692 F.2d 478, 482–83 (7th Cir. 1982).

     Although Skidmore offers a host of reasons why
adherence to the statute complicates proof in copyright
cases, these arguments cannot overcome the statutory
requirements. For example, Skidmore claims that it is
impractical to compare a sound recording of the infringing
work to a deposit copy of the infringed work, even though
that is precisely what happened here, and experts for both
sides were confident in their analysis. Indeed, during the
trial, Skidmore’s master guitarist, Kevin Hanson, performed
the Taurus deposit copy as he interpreted it.

    Skidmore also complains that restricting protection to
the deposit copy disadvantages musicians who do not read
music because it can be time consuming and expensive to
make an accurate deposit copy. Apparently, that was not a
problem here, as Wolfe’s work was transcribed for the sheet
music deposit. Digital transcription and other technological
advances undercut this argument, not to mention that for
decades now, sound recordings have been accepted as the
deposit copy. Finally, Skidmore offers conjecture about
what might happen if a deposit copy were lost or destroyed.
We need not play this “what if” guessing game because the
statute is clear and unambiguous.
22               SKIDMORE V. LED ZEPPELIN

    The district court correctly concluded that under the
1909 Act, which controls the copyright registration in this
case, the Taurus deposit copy circumscribes the scope of the
copyright. Because the deposit copy defines the four corners
of the Taurus copyright, it was not error for the district court
to decline Skidmore’s request to play the sound recordings
of the Taurus performance that contain further
embellishments or to admit the recordings on the issue of
substantial similarity.

II. ELEMENTS OF COPYRIGHT INFRINGEMENT

    Proof of copyright infringement requires Skidmore to
show: (1) that he owns a valid copyright in Taurus; and
(2) that Led Zeppelin copied protected aspects of the work.
Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116–17 (9th Cir.
2018) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991)). Skidmore’s ownership of a valid
copyright in Taurus was not challenged on appeal.

    The second prong of the infringement analysis contains
two separate components:        “copying” and “unlawful
appropriation.” Rentmeester, 883 F.3d at 1117. Although
these requirements are too often referred to in shorthand
lingo as the need to prove “substantial similarity,” they are
distinct concepts.

    Because independent creation is a complete defense to
copyright infringement, a plaintiff must prove that a
defendant copied the work. Feist, 499 U.S. at 345–46. In
the absence of direct evidence of copying, which is the case
here, 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. This type of
probative or striking similarity shows that the similarities
                SKIDMORE V. LED ZEPPELIN                    23

between the two works are due to “copying rather than . . .
coincidence, independent creation, or prior common
source.” Bernal v. Paradigm Talent & Literary Agency,
788 F. Supp. 2d 1043, 1052 (C.D. Cal. 2010) (omission in
original) (quoting 4 Nimmer § 13.02[B]). A finding of such
similarity may be based on the overlap of unprotectable as
well as protectable elements. Rentmeester, 883 F.3d at 1117.

    On the other hand, the hallmark of “unlawful
appropriation” is that the works share substantial
similarities. Newton v. Diamond, 388 F.3d 1189, 1193 (9th
Cir. 2004). In our circuit, we use a two-part test to determine
whether the defendant’s work is substantially similar to the
plaintiff’s copyrighted work. Cavalier v. Random House,
Inc., 297 F.3d 815, 822 (9th Cir. 2002). The first part, the
extrinsic test, compares the objective similarities of specific
expressive elements in the two works. Id. Crucially,
because only substantial similarity in protectable expression
may constitute actionable copying that results in
infringement liability, “it is essential to distinguish between
the protected and unprotected material in a plaintiff’s work.”
Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). The
second part, the intrinsic test, “test[s] for similarity of
expression from the standpoint of the ordinary reasonable
observer, with no expert assistance.” Jada Toys, Inc. v.
Mattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008) (quoting
Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1442
(9th Cir. 1994)). Both tests must be satisfied for the works
to be deemed substantially similar. See Funky Films, Inc. v.
Time Warner Entm’t Co., 462 F.3d 1072, 1077 (9th Cir.
2006).
24              SKIDMORE V. LED ZEPPELIN

III.   EVIDENTIARY    CHALLENGE—THE                COPYING
       PRONG OF INFRINGEMENT

    At trial, one of Skidmore’s key arguments was that Led
Zeppelin members heard either performances or recordings
of Taurus before creating Stairway to Heaven, and thus had
access for purposes of copying the music. To prove that
point, Skidmore wanted to play several recordings of Taurus
during the testimony of Jimmy Page, claiming that observing
Page listening to the recordings would have enabled the jury
to evaluate his demeanor with respect to access. Skidmore’s
counsel explained that the recordings could be offered to
prove access, even if the court excluded them for proving
substantial similarity. The district court determined that
although the sound recordings were relevant to prove access,
Skidmore’s approach would be “too prejudicial for the jury”
because it risked confusing access with substantial
similarity. Hence the court excluded the recordings under
Federal Rule of Evidence 403. The court instead permitted
Skidmore’s counsel to play the recordings for Page outside
the presence of the jury and then question him about the
recordings in front of the jury.

    Skidmore’s position is a curious one and defies common
sense. There would have been very little, if any, probative
value in watching Page’s reaction to listening to Taurus at
the trial in 2016 to prove access to the song half a century
ago. To prevent the jury from making an erroneous
comparison for determining substantial similarity, the court
properly excluded the sound recording, which contains
performance elements that are not protected by the Taurus
deposit copy. Indeed, the court’s exclusion ruling displayed
a clear understanding of the distinct components of copying
and unlawful appropriation, letting the evidence in “as far as
                 SKIDMORE V. LED ZEPPELIN                    25

access,” but “not . . . to compare the performance” to
Stairway to Heaven.

    In any event, the evidentiary question is moot. It turns
out Skidmore’s examination of Page on access proved
fruitful. When Page testified, he candidly admitted to
owning “a copy of the album that contains ‘Taurus,’ . . . in
[his] collection,” though still denying “any knowledge of
‘Taurus.’” The jury found that both Page and Plant “had
access to the musical composition Taurus before Stairway to
Heaven was created.” Once the jury made that finding, the
remaining questions on the jury verdict form related to
substantial similarity of the works.

    In answer to the question of whether “original elements
of the musical composition Taurus are extrinsically similar
to Stairway to Heaven,” the jury said no. Because the
extrinsic test was not satisfied, the jury did not reach the
intrinsic test. Although these findings ended the jury’s
copyright analysis, Skidmore also challenges various trial
rulings.

IV.    THE JURY INSTRUCTION CHALLENGES

    Three jury instructions are at issue in this appeal: (1) the
failure to give an inverse ratio rule instruction; (2) the
sufficiency of the court’s originality instructions; and (3) the
failure to give a selection and arrangement instruction. We
review for abuse of discretion the district court’s formulation
of the instructions and review de novo whether the
instructions accurately state the law.           Louis Vuitton
Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 941 (9th
Cir. 2011). We consider the issued instructions as a whole,
but reversal is not warranted if “the error is more probably
than not harmless.” Swinton v. Potomac Corp, 270 F.3d 794,
802, 805 (9th Cir. 2001) (quoting Caballero v. City of
26               SKIDMORE V. LED ZEPPELIN

Concord, 956 F.2d 204, 206 (9th Cir. 1992)). “[W]hen a
litigant in a civil trial fails to object to a jury instruction, we
may review the challenged jury instruction for plain error.”
Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015).

        THE INVERSE RATIO RULE

     Copyright infringement cases often boil down to the
crucial question of substantial similarity. We have stated
that “substantial similarity is inextricably linked to the issue
of access,” and have adhered to “what is known as the
‘inverse ratio rule,’” which requires “a lower standard of
proof of substantial similarity when a high degree of access
is shown.” Three Boys Music, 212 F.3d at 485 (quoting
Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)). That
is, “the stronger the evidence of access, the less compelling
the similarities between the two works need be in order to
give rise to an inference of copying.” Rentmeester, 883 F.3d
at 1124.

    Skidmore proposed an inverse ratio rule instruction, but
the court chose not to give the instruction. The court
reaffirmed this decision when Skidmore raised the question
again after the close of testimony: “We’re not going to give
that instruction.” Because the inverse ratio rule, which is not
part of the copyright statute, defies logic, and creates
uncertainty for the courts and the parties, we take this
opportunity to abrogate the rule in the Ninth Circuit and
overrule our prior cases to the contrary. See e.g., Three Boys
Music, 212 F.3d at 485–86; Shaw v. Lindheim, 919 F.2d
1353, 1361–62 (9th Cir. 1990).

   The circuits are split over the inverse ratio rule, but the
majority of those that have considered the rule declined to
adopt it. The Second, Fifth, Seventh, and Eleventh Circuits
have rejected the rule. Peters v. West, 692 F.3d 629, 634–35
                    SKIDMORE V. LED ZEPPELIN                            27

(7th Cir. 2012) (noting that the circuit has never endorsed the
idea that “a ‘high degree of access’ justifies a ‘lower
standard of proof’ for similarity”); Positive Black Talk, Inc.
v. Cash Money Records, Inc., 394 F.3d 357, 371 (5th Cir.
2004) (acknowledging the rule but explicitly not adopting
it), abrogated on other grounds by Reed Elsevier, 559 U.S.
154; Beal v. Paramount Pictures Corp., 20 F.3d 454, 460
(11th Cir. 1994); Arc Music Corp. v. Lee, 296 F.2d 186, 187–
88 (2d Cir. 1961). Only our circuit and the Sixth Circuit
have endorsed it. 7 See Stromback v. New Line Cinema,
384 F.3d 283, 293 (6th Cir. 2004); see also Peters, 692 F.3d
at 634 (similarly describing the split).

     But even within our circuit, our embrace and application
of the rule have had a “checkered application.” 4 Nimmer
§ 13.03[D]. The very nature of the rule spawned uncertainty
in its application. We first articulated the rule in 1977,
holding that the high “degree of access” present in that case
“justifie[d] a lower standard of proof to show substantial
similarity,” though “[n]o amount of proof of access will
suffice to show copying if there are no similarities.” Sid &
Marty Krofft Television Prods., Inc. v. McDonald’s Corp.,
562 F.2d 1157, 1172 (9th Cir. 1977), superseded on other
grounds by 17 U.S.C. § 504(b). In its next breath, the court
in Krofft admitted that “it is impossible to quantify this
standard,” so it is unsurprising that the court was unclear—
failing to explain whether the rule applied to the actual
copying or unlawful appropriation prong of the infringement
analysis. Id.; see David Aronoff, Exploding the “Inverse
Ratio Rule,” 55 J. Copyright Soc’y U.S.A. 125, 136 (2008)

    7
        The Federal Circuit has applied the rule, but only because it
“applies copyright law as interpreted by the regional circuits, in this case
. . . the Ninth Circuit.” Amini Innovation Corp. v. Anthony Cal., Inc.,
439 F.3d 1365, 1368–69 (Fed. Cir. 2006).
28               SKIDMORE V. LED ZEPPELIN

(“[T]he court [in Krofft] was confused as to whether the
[inverse ratio rule] applied to the element of actual copying
or unlawful appropriation . . . .”).

     A decade later, we reversed course and distanced
ourselves from Krofft, relying on the Second Circuit’s
rejection of the inverse ratio rule in Arc Music. See Aliotti v.
R. Dakin & Co., 831 F.2d 898, 902 (9th Cir. 1987).
According to Aliotti, because the rule “ha[d] been employed
by no Ninth Circuit case since Krofft and had been earlier
criticized for ‘confus[ing] and even conceal[ing]’ the
requirement of substantial similarity,” the court declined to
“address the continuing viability of” the rule. Id. (alteration
in original) (quoting Arc Music, 296 F.2d at 187–88). But
Aliotti was a momentary detour. We later returned to the
inverse ratio rule and, in a series of cases throughout the
1990s and early 2000s, applied it in confusing ways.

    Revitalizing Krofft, we several times affirmed that the
rule guided our analysis of similarity. See, e.g., Three Boys
Music, 212 F.3d at 485–86; Smith, 84 F.3d at 1218 & n.5;
Shaw, 919 F.2d at 1361–62. Even so, we did not explain
how to apply the rule. See Aronoff, supra, at 137 (applying
the rule in the context of the unlawful appropriation analysis,
“the court did not articulate how [access] is to be considered,
or the weight it is to be given”).

    The lack of clear guidance is likely due in no small part
to our use of the term “substantial similarity,” both in the
context of copying and unlawful appropriation, muddying
the waters as to what part of the infringement analysis the
rule applies. See 3 William F. Patry, Patry on Copyright
(“Patry”) § 9.91 (2017) (“The inverse ratio theory confuses
fundamental principles of infringement analysis: access is
relevant only in establishing the act of copying, not in
establishing the degree thereof. Once copying is established,
                 SKIDMORE V. LED ZEPPELIN                      29

access is irrelevant and the inquiry shifts to the final stage of
the infringement analysis, material appropriation.”). In
Rentmeester, we pointed out the term’s dual use and
ultimately stated that the inverse ratio rule “assists only in
proving copying, not in proving unlawful appropriation.”
883 F.3d at 1124.

    Capping off this period of expansion, we even pushed
past the rule’s outer limits set forth in Krofft, i.e., that “[n]o
amount of proof of access will suffice to show copying if
there are no similarities.” 562 F.2d at 1172. In Metcalf v.
Bochco, though we did not explicitly name the rule, we held
that because access was not disputed, we “could easily infer
that the many [generic] similarities between [the works]
were the result of copying, not mere coincidence.” 294 F.3d
1069, 1074–75 (9th Cir. 2002).

    Confusion followed in Metcalf’s wake. In one case, we
tried to cabin Metcalf to cases where there was a clear
“concession of access.” Rice v. Fox Broad. Co., 330 F.3d
1170, 1178–79 (9th Cir. 2003). In other cases, where access
was assumed (though not conceded), we “side-stepped”
Metcalf and held that the similarities between works were
insufficient to support a conclusion of copying. Aronoff,
supra at 139; see e.g., Funky Films, 462 F.3d at 1081 n.4;
Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625 (9th
Cir. 2010). The result?—confusion about when to apply the
rule and the amount of access and similarity needed to
invoke it.

    Our jurisprudence in recent years brought additional
uncertainty. In 2000, we circumscribed the rule by
explaining that it is not a two-way street: while the rule
“requires a lesser showing of substantial similarity if there is
a strong showing of access,” it does not mean that “a weak
showing of access requires a stronger showing of substantial
30                SKIDMORE V. LED ZEPPELIN

similarity.” Three Boys Music, 212 F.3d at 486. In 2018, it
seems, the rule goes both ways: it also provides that the
“more compelling the similarities supporting an inference of
copying, the less compelling the evidence of access need
be.” Rentmeester, 883 F.3d at 1124. 8 In the face of tangled
precedent, the Rentmeester panel tried to carefully thread the
needle, but ended up adding another indecipherable stitch.

    Just two years ago, we again sowed doubt whether the
rule ought to apply at all. In Williams v. Gaye, which dealt
with the song Blurred Lines, the majority initially defended
use of the rule against the dissent’s criticism because the rule
is “binding precedent” that “we are bound to apply.”
885 F.3d 1150, 1163 n.6 (9th Cir. 2018). But in an amended
opinion, the court deleted all references to the rule. Williams
v. Gaye, 895 F.3d 1106 (9th Cir. 2018). One commentator
posited the rule was excised because it “is so controversial.”
Edwin F. McPherson, Crushing Creativity: The Blurred
Lines Case and Its Aftermath, 92 S. Cal. L. Rev. Postscript
67, 75 n.22 (2018).

    As we struggled with the inverse ratio rule over the
years, the Second Circuit rejected it as early as 1961,
describing the idea as a “superficially attractive apophthegm
which upon examination confuses more than it clarifies.”
Arc Music, 296 F.2d at 187. The court reasoned that “access
will not supply [similarity’s] lack, and an undue stress upon
that one feature can only confuse and even conceal this basic
requirement.” Id. at 187–88. Importantly, the Second


     8
      The Ninth Circuit Model Jury Instructions Copyright § 17.17
(2017)—Copying—Access and Substantial Similarity—and the
Supplemental Instruction suffer from similar infirmities in trying to
reconcile the case law.
                 SKIDMORE V. LED ZEPPELIN                       31

Circuit noted that there is “no such principle” in “the federal
law of copyright.” Id. at 187.

    The Second Circuit also identified the problematic
implications of this principle where access is very high and
similarity very low: “[t]he logical outcome of the claimed
principle is obviously that proof of actual access will render
a showing of similarities entirely unnecessary.” Id.
However, “it does not follow that ‘more’ access increases
the likelihood of copying.” Aronoff, supra, at 126. Yet that
is what the rule compels. Complete access without any
similarity should never result in infringement liability
because there is no infringement. Even so, the rule suggests
that liability may be imposed in such a case. “There is,”
however, “simply no logic in presupposing that the mid-
points of [the rule] give rise to a ‘ratio’ of access to similarity
constituting proof of” infringement. Id. at 141. Indeed, even
“[w]hen the inverse ratio rule is applied, we still don’t know
how much similarity is required.” Patry § 9.91.

     The flaws in the rule can be seen in the inconsistent ways
in which we have applied the rule within our circuit, the logic
of the circuits that have rejected the rule, and analysis by
academics and commentators. See id. (“There is nothing
positive that can be said about a rule that lacks any clarity at
all: trying to get a jury to both understand the rule and apply
it properly is totally impossible.”).

    As a practical matter, the concept of “access” is
increasingly diluted in our digitally interconnected world.
Access is often proved by the wide dissemination of the
copyrighted work. See Loomis v. Cornish, 836 F.3d 991,
995 (9th Cir. 2016). Given the ubiquity of ways to access
media online, from YouTube to subscription services like
Netflix and Spotify, access may be established by a trivial
showing that the work is available on demand. See Brooks
32               SKIDMORE V. LED ZEPPELIN

Barnes, The Streaming Era Has Finally Arrived. Everything
Is About to Change., N.Y. Times, Nov. 18, 2019 (In addition
to Netflix, which “entertain[s] more than 158 million
subscribers worldwide,” there are currently “271 online
video services available in the United States”).

    To the extent “access” still has meaning, the inverse ratio
rule unfairly advantages those whose work is most accessible
by lowering the standard of proof for similarity. Thus the
rule benefits those with highly popular works, like The
Office, which are also highly accessible. But nothing in
copyright law suggests that a work deserves stronger legal
protection simply because it is more popular or owned by
better-funded rights holders.

    Finally, the inverse ratio rule improperly dictates how
the jury should reach its decision. The burden of proof in a
civil case is preponderance of the evidence. Yet this judge-
made rule could fittingly be called the “inverse burden rule.”

    Although we are cautious in overruling precedent—as
we should be—the constellation of problems and
inconsistencies in the application of the inverse ratio rule
prompts us to abrogate the rule. Access does not obviate the
requirement that the plaintiff must demonstrate that the
defendant actually copied the work. By rejecting the inverse
ratio rule, we are not suggesting that access cannot serve as
circumstantial evidence of actual copying in all cases;
access, however, in no way can prove substantial similarity.
We join the majority of our sister circuits that have
considered the inverse ratio rule and have correctly chosen
to excise it from copyright analysis. In light of this holding,
the district court did not err in failing to instruct the jury on
the inverse ratio rule.
                SKIDMORE V. LED ZEPPELIN                    33

       THE ORIGINALITY INSTRUCTIONS

      Although copyright protects only original expression, it
is not difficult to meet the famously low bar for originality.
Feist, 499 U.S. at 345 (“The sine qua non of copyright is
originality”; “[t]he vast majority of works make the grade
quite easily . . . .”); see also 17 U.S.C. § 102(a) (“Copyright
protection subsists . . . in original works of authorship
. . . .”).

    Even in the face of this low threshold, copyright does
require at least a modicum of creativity and does not protect
every aspect of a work; ideas, concepts, and common
elements are excluded. See 17 U.S.C. § 102(b); Feist,
499 U.S. at 345–46. Nor does copyright extend to “common
or trite” musical elements, Smith, 84 F.3d at 1216 n.3, or
“commonplace elements that are firmly rooted in the genre’s
tradition,” Williams, 895 F.3d at 1140–41 (Nguyen, J.,
dissenting). These building blocks belong in the public
domain and cannot be exclusively appropriated by any
particular author. See Satava v. Lowry, 323 F.3d 805, 810
(9th Cir. 2003) (“[E]xpressions that are standard, stock, or
common to a particular subject matter or medium are not
protectable under copyright law”). Authors borrow from
predecessors’ works to create new ones, so giving exclusive
rights to the first author who incorporated an idea, concept,
or common element would frustrate the purpose of the
copyright law and curtail the creation of new works. See id.
at 813 (“we must be careful in copyright cases not to cheat
the public domain”); Berkic v. Crichton, 761 F.2d 1289,
1293 (9th Cir. 1985) (“General ideas . . . remain forever the
common property of artistic mankind.”); 1 Nimmer
§ 2.05[B] (“In the field of popular songs, many, if not most,
compositions bear some similarity to prior songs.”). With
34                     SKIDMORE V. LED ZEPPELIN

these background principles in mind, we review the district
court’s instructions on originality, Nos. 16 and 20. 9

   Jury Instruction No. 16 explained “what a copyright is,
what it protects, and what it does not protect.” 10 Relevant

     9
      By filing proposed originality instructions and objecting to Led
Zeppelin’s versions, Skidmore preserved his objection to the originality
instructions given by the district court. See Fed. R. Civ. P. 51(c)(1); C.D.
Cal. Local Rule 51-1, -5.
     10
          Jury Instruction No. 16 reads in full 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

                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.
                SKIDMORE V. LED ZEPPELIN                      35

to this appeal, the instruction provided that “[c]opyright only
protects the author’s original expression in a work.” This
statement comes straight from the Supreme Court’s opinion
in Feist. The instruction went on to state that copyright “does
not protect ideas, themes or common musical elements, such
as descending chromatic scales, arpeggios or short
sequences of three notes.” Although this statement is
derived from Smith, Skidmore objects to the list of
unprotectable elements. In particular, he argues that
characterizing the “descending chromatic scales, arpeggios
or short sequence of three notes” as examples of “common
musical elements” was prejudicial to him.

    To put this instruction in context, it is useful to outline
the essence of the “common musical elements” or building
blocks. The chromatic scale is one of two principal scales in
Western music. It consists of twelve pitches separated by a
half-step. On a piano, this means playing the white and
black keys in order from left to right. Three or more notes
or pitches sounded simultaneously are called chords, and an
arpeggio, sometimes called a broken chord, is “[a] chord
whose pitches are sounded successively, . . . rather than
simultaneously.”      Arpeggio, Chromatic, and Chord,
Harvard Dictionary of Music (Don Michael Randel ed., 4th
ed. 2003).

    To conduct a copyright infringement analysis, the
factfinders ask “whether ‘the protectible elements, standing
alone, are substantially similar’” and “disregard the non-


           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.
36              SKIDMORE V. LED ZEPPELIN

protectible elements.” Cavalier, 297 F.3d at 822 (quoting
Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996)); see
Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1446
(9th Cir. 1994) (same). Jury Instruction No. 16 correctly
listed non-protectable musical building blocks that no
individual may own, and did not, as Skidmore claims,
exclude the particular use of musical elements in an original
expression.

    For example, despite Skidmore’s challenge to the
characterization of descending chromatic scales as
unprotectable, even his own expert musicologist,
Dr. Stewart, agreed musical concepts like the minor
chromatic line and the associated chords have been “used in
music for quite a long time” as “building blocks.” This
candid acknowledgement was echoed by Led Zeppelin’s
expert.    Dr. Ferrara described the “chromatic scale,
descending or ascending,” as “a musical building block.
This is something that no one can possibly own.” The
commonality of descending scales and arpeggios has been
reinforced by the Copyright Office, which lists “[d]iatonic
or chromatic scales” and “arpeggios” as common property
musical material. Copyright Office Compendium § 802.5(A)
(3d ed. 2017). Emphasizing the importance of original
creation, the Copyright Office notes that “a musical work
consisting entirely of common property material would not
constitute original authorship.” Id. Just as we do not give
an author “a monopoly over the note of B-flat,” descending
chromatic scales and arpeggios cannot be copyrighted by
any particular composer. Swirsky, 376 F.3d at 851.

   We have never extended copyright protection to just a
few notes. Instead we have held that “a four-note sequence
common in the music field” is not the copyrightable
expression in a song. Granite Music Corp. v. United Artists
                 SKIDMORE V. LED ZEPPELIN                     37

Corp., 532 F.2d 718, 721 (9th Cir. 1976). In the context of
a sound recording copyright, we have also concluded that
taking six seconds of the plaintiff’s four-and-a-half-minute
sound recording—spanning three notes—is de minimis,
inactionable copying. See Newton, 388 F.3d at 1195–96.
One of our colleagues also expressed skepticism that three
notes used in a song can be copyrightable by observing that
of the “only 123 or 1,728 unique combinations of three
notes,” not many would be useful in a musical composition.
See Williams, 895 F.3d at 1144 n.6 (Nguyen, J., dissenting).
The Copyright Office is in accord, classifying a “musical
phrase consisting of three notes” as de minimis and thus not
meeting the “quantum of creativity” required under Feist.
Copyright Office Compendium, § 313.4(B) (3d ed. 2017).
At the same time, we have not foreclosed the possibility that
“seven notes” could constitute an original expression.
Swirsky, 376 F.3d at 852. To the contrary, our sister circuit
observed decades ago that “the seven notes available do not
admit of so many agreeable permutations that we need be
amazed at the re-appearance of old themes.” Arnstein v.
Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir.
1936).

    In view of our precedent and accepted copyright
principles, the district court did not commit a reversible error
by instructing the jury that a limited set of a useful three-note
sequence and other common musical elements were not
protectable.

    The district court also instructed the jury on copyright
originality in Jury Instruction No. 20, which states:

            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
38              SKIDMORE V. LED ZEPPELIN

       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.

    Despite Skidmore’s claim that the following language
has no support in the law and was prejudicial—“any element
from prior works or the public domain are not considered
original parts and not protected by copyright”—this is black-
letter law. See 17 U.S.C. §§ 102(b), 103. Reading this
sentence with the preceding one—an “original work may
include or incorporate elements taken from prior works or
works from the public domain”—we conclude that Jury
Instruction No. 20 correctly instructed the jury that original
expression can be the result of borrowing from previous
works or the public domain.

    Skidmore appears to want less than the law demands. In
his closing and on appeal, he argued that a work is original
as long as it was independently created. Not quite. Though
not demanding, originality requires at least “minimal” or
“slight” creativity—a “modicum” of “creative spark”—in
addition to independent creation. Feist, 499 U.S. at 345–46,
362. Jury Instruction No. 20 correctly articulated both
requirements for originality, that the work be created
“independently by the work’s author,” and contain “at least
some minimal creativity.” The court’s omission of the
optional, bracketed language from the Ninth Circuit Model
Jury Instruction 17.14 (2017)—which reads, “In copyright
                 SKIDMORE V. LED ZEPPELIN                    39

law, the ‘original’ part of a work need not be new or
novel”—was not a reversible error. The reference to
“minimal creativity” in Jury Instruction No. 20 embraces
this concept. Reviewing the jury instructions as a whole, we
conclude that the originality instructions were sound and
were not prejudicial to Skidmore.

       THE OMISSION OF A SELECTION                         AND
       ARRANGEMENT INSTRUCTION

       1. Skidmore Forfeited His Objection to the
          Omitted     Selection and  Arrangement
          Instruction

   The district court did not give what Skidmore
denominates as a “selection and arrangement” instruction.
Because Skidmore did not preserve his objection to the
omission, we review for plain error.

    Skidmore maintains that his objection was preserved by
the timely filing of a proposed selection and arrangement
instruction and by objecting to Led Zeppelin’s version. Not
so. Federal Rule of Civil Procedure 51(d)(1)(B) provides
that “a failure to give an instruction” must be both “properly
requested . . . and . . . also properly objected [to].” An
objection must be made “on the record,” “promptly after
learning that the instruction or request will be . . . refused.”
Fed. R. Civ. P. 51(c)(1), (c)(2)(B). Skidmore may have
requested a selection and arrangement instruction, but he did
not object to the district court’s decision to omit the
instruction. In other words, Skidmore’s proffer of the
instruction was necessary but not sufficient to preserve the
objection. See United States ex rel. Reed v. Callahan,
884 F.2d 1180, 1184 (9th Cir. 1989) (objection waived
where “counsel offered the . . . proposed instructions” but
“no objection was made to the failure to give them”);
40               SKIDMORE V. LED ZEPPELIN

Monroe v. City of Phoenix, 248 F.3d 851, 858 (9th Cir. 2001)
(objection waived where counsel “simply submitted a
proposed jury instruction” but “failed to properly object at
trial to the failure to give the proposed instruction”),
abrogated on other grounds by Scott v. Harris, 550 U.S. 372
(2007).

     Nor is this the type of situation where “it is obvious that
in the process of settling the jury instructions the court was
made fully aware of the objections of the party and the
reasons therefor and further objections would be
unavailing.” Reed, 884 F.2d at 1184. According to
Skidmore, he could not object to the refused instruction
because the district court forbade oral objections. The record
tells a different story. Skidmore’s myriad other objections,
all allowed by the district court, undermine his account of
the procedure at trial. For example, Skidmore requested the
omission of an instruction on a topic not presented to the
jury; objected to the wording of several jury instructions; and
proposed a new jury instruction. The court’s response was
to entertain extensive discussion from the parties about the
instructions, letting them state their objections “for the
record.” Further, the court asked Skidmore to draft the
proposed new instruction and bring it in the next day.

    A parallel omission situation is illuminating. Skidmore
objected to the court’s refusal to include a jury instruction on
the inverse ratio rule. The judge overruled that objection
without suggesting that he would not entertain others.
Indeed, when raising the inverse-ratio objection, counsel
said “one last thing,” implying that he had no other
objections. In contrast, Skidmore did not object to the
court’s refusal to include a jury instruction on selection and
arrangement during the extensive discussion counsel and the
court had on jury instructions. Nor did Skidmore object to
                SKIDMORE V. LED ZEPPELIN                   41

the omission of the selection and arrangement instruction
before the jury was summoned the next morning.

    Skidmore was responsible for compiling the court’s final
instructions, so he was well aware of what instructions were
included and omitted. The court affirmatively engaged with
Skidmore when he wanted to “make sure” that certain
instructions had been included. Although Skidmore argues
that the selection and arrangement theory was central to his
infringement case, his conspicuous silence on the omission
of what he claims to be a crucial instruction cannot be
squared with the court’s willingness to discuss specific
instructions. On this record, it was not “obvious” that an
objection to the failure to give a selection and arrangement
instruction would be “unavailing.”

    In any case, there is a real possibility that the district
court simply overlooked the instruction, and would have
been willing to give one had the omission been brought to its
attention. But absent notice and an objection, the district
court cannot be expected to divine an objection to an omitted
instruction. We do not impose such prescience on the
district court in the face of the complicated, and often
hurried, process of producing a final set of instructions. We
noted long ago that the district court need not “rummage
through . . . proposed instructions in an effort to discover
potential objections to instructions not . . . given . . . .”
Bertrand v. S. Pac. Co., 282 F.2d 569, 572 (9th Cir. 1960).
By not putting the district court on notice of an objection to
a refused instruction, Skidmore forfeited his objection.
Therefore, we apply plain error review. Fed. R. Civ. P.
51(d)(2).
42               SKIDMORE V. LED ZEPPELIN

       2. The District Court Did Not Commit a Plain
          Error in Omitting the Instruction

    Because Skidmore did not preserve his objection, we
review the omission of a selection and arrangement
instruction for “a plain error in the instructions . . . if the
error affects substantial rights.” Fed. R. Civ. P. 51(d)(2); see
Chess, 790 F.3d at 970. Under plain error review of a civil
jury instruction, we consider whether “(1) there was an error;
(2) the error was obvious; and (3) the error affected
substantial rights.” C.B. v. City of Sonora, 769 F.3d 1005,
1018 (9th Cir. 2014) (en banc). Even where these
demanding requirements are met, “the decision whether to
correct a plain error under Federal Rule of Civil Procedure
51(d)(2) is discretionary,” typically invoked only where “the
error seriously impaired the fairness, integrity, or public
reputation of judicial proceedings” “to prevent a miscarriage
of justice.” Id. at 1018–19.

    Even if there was an error in not giving the instruction,
and even assuming the error was plain, we cannot conclude
that it produced a miscarriage of justice. The district court
did not err in withholding the studio version of Taurus from
the jury. A selection and arrangement instruction would not
have convinced the jury that Stairway to Heaven was
substantially similar to the deposit copy of Taurus.
Therefore, the failure to give the selection and arrangement
instruction cannot have “likely prejudiced the outcome of the
case,” or “seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.” Hoard v. Hartman,
904 F.3d 780 787 (9th Cir. 2018) (internal quotation marks
omitted). We may also take “into consideration ‘the costs of
correcting [the] error,’” id. (quoting C.B., 769 F.3d at 1018),
and that factor clearly supports letting the jury verdict stand.
                 SKIDMORE V. LED ZEPPELIN                    43

This case involved a lengthy trial, and there is little reason
to have another trial that Skidmore cannot win.

    “Rare is the case where the district court’s errors are so
grave as to ‘seriously impair[ ] the fairness, integrity, or
public reputation of judicial proceedings.’” Id. at 791
(alteration in original) (quoting C.B., 769 F.3d at 1019); see
also Teixeira v. Town of Coventry ex rel. Przybyla, 882 F.3d
13, 18 (1st Cir. 2018) (describing such errors as “hen’s-teeth
rare”). This is not such a case. The district court did not
commit a plain error in deciding not to give a selection and
arrangement instruction.

       3. Skidmore Did Not Present a Selection and
          Arrangement Theory

    Finally, we conclude that the district court did not
commit any error. The fatal flaw in Skidmore’s argument
that he was entitled to a selection and arrangement
instruction is that he did not present that as a separate theory
at trial. To be sure, a copyright plaintiff may argue
“infringement . . . based on original selection and
arrangement of unprotected elements.” Metcalf, 294 F.3d
at 1074 (quoting Apple Computer, 35 F.3d at 1446). The
supposed centrality of a selection and arrangement theory is
belied by the trial record. Skidmore never once used the
words “selection” or “arrangement” during trial. But we do
not rest our discussion on invocation of copyright
vernacular; more importantly, Skidmore never presented the
argument to the jury. Nowhere did Skidmore argue that the
claimed elements were selected and arranged in a particular
way to create the resulting four-bar passage in Section A of
the musical composition in Taurus. Nor was there a word in
Skidmore’s closing about the selection and arrangement
theory. Notably, our decision here is based on the trial
44              SKIDMORE V. LED ZEPPELIN

evidence and not          an   appellate    adjudication    of
copyrightability.

    At trial, Skidmore’s copyright infringement claim was
based on the combination of five elements: minor chromatic
line and associated chords; duration of pitches of minor
chromatic line; melody placed over the descending
chromatic line consisting of combination of arpeggios and
two-note sequences; rhythm of steady eighth note beats; and
pitch collection.

    Skidmore and his expert underscored that the presence
of these five musical components makes Taurus unique and
memorable: Taurus is original, and the presence of these
same elements in Stairway to Heaven makes it infringing.
This framing is not a selection and arrangement argument.
Skidmore never argued how these musical components
related to each other to create the overall design, pattern, or
synthesis. Skidmore simply presented a garden variety
substantial similarity argument. Yet, Skidmore relies on the
handful of times that his expert musicologist, Dr. Stewart,
referred to the “unique and memorable” parts of the Taurus
composition as a “combination” to argue that he made a
selection and arrangement argument at trial, though not even
this “combination” characterization was included in his
closing.

    Semantics do not characterize legal arguments—
substance does. Skidmore does not contest that the selection
and arrangement must itself be original to merit copyright
protection. See Feist, 499 U.S. at 358. We have extended
copyright protection to “a combination of unprotectable
elements . . . only if those elements are numerous enough
and their selection and arrangement original enough that
their combination constitutes an original work of
authorship.” Satava, 323 F.3d at 811. Put another way, what
                    SKIDMORE V. LED ZEPPELIN                           45

a selection and arrangement copyright protects is the
particular way in which the artistic elements form a coherent
pattern, synthesis, or design. See L.A. Printex Indus., Inc. v.
Aeropostale, Inc., 676 F.3d 841, 850–51 (9th Cir. 2012)
(“original selection, coordination, and arrangement” that
result in the overall “design” are protectable); Metcalf,
294 F.3d at 1074 (“Each note in a scale . . . is not protectable,
but a pattern of notes in a tune may earn copyright
protection.”); United States v. Hamilton, 583 F.2d 448, 452
(9th Cir. 1978); see also Feist, 499 U.S. at 350–51;
Rentmeester, 883 F.3d at 1119.

    Skidmore and his experts never argued to the jury that
the claimed musical elements cohere to form a holistic
musical design. Both Skidmore’s counsel and his expert
confirmed the separateness of the five elements by calling
them “five categories of similarities.” These disparate
categories of unprotectable elements are just “random
similarities scattered throughout [the relevant portions of]
the works.” Shaw, 919 F.2d at 1362 (quoting Litchfield v.
Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984)). Labeling
them a “combination” of unprotectable elements does not
convert the argument into a selection and arrangement
case. 11 Skidmore’s selection and arrangement argument
fails because a copyright plaintiff “d[oes] not make an
argument based on the overall selection and sequencing of

     11
        Skidmore misconstrues Swirsky’s observation that we have
upheld “a jury finding of substantial similarity based on the combination
of five otherwise unprotectable elements.” 376 F.3d at 849. There, the
court was trying to fathom which aspects of a musical composition can
be used for a similarity analysis, given that no definitive list of musical
elements existed in the case law. Properly read, Swirksy left open the
possibility that five or more different musical elements may be analyzed
for a substantial similarity analysis, not that a set of five musical
elements is always sufficient to find infringement. Id.
46              SKIDMORE V. LED ZEPPELIN

. . . similarities,” if the theory is based on “random
similarities scattered throughout the works.” Metcalf,
294 F.3d at 1074–75 (quoting Cavalier, 297 F.3d at 825);
see also Litchfield, 736 F.2d at 1356 (same). Presenting a
“combination of unprotectable elements” without explaining
how these elements are particularly selected and arranged
amounts to nothing more than trying to copyright
commonplace elements. Satava, 323 F.3d at 811–12.
Without such arrangement, there is no liability for taking
“ideas and concepts” from the plaintiff’s work, “even in
combination.” Rentmeester, 883 F.3d at 1122–23.

    Skidmore misconstrues what the copyright law means by
a “combination,” “compilation,” and “selection and
arrangement” of unprotectable elements.             The word
“combination” cannot mean any “set” of artistic building
blocks. We have explained that only the “new combination,”
that is the “novel arrangement,” Universal Pictures Co. v.
Harold Lloyd Corp., 162 F.2d 354, 363 (9th Cir. 1947)
(emphasis added), and not “any combination of
unprotectable elements . . . qualifies for copyright
protection,” Satava, 323 F.3d at 811. Likewise, a protectable
“compilation” is the precise “result[]” that is “formed by the
collection and assembling of preexisting materials . . . that
are selected, coordinated, or arranged.” 17 U.S.C. § 101.

    Therefore, a selection and arrangement copyright is
infringed only where the works share, in substantial
amounts, the “particular,” i.e., the “same,” combination of
unprotectable elements. Feist, 499 U.S. at 349, 350–51. A
plaintiff thus cannot establish substantial similarity by
reconstituting the copyrighted work as a combination of
unprotectable elements and then claiming that those same
elements also appear in the defendant’s work, in a different
aesthetic context. Because many works of art can be recast
                   SKIDMORE V. LED ZEPPELIN                           47

as compilations of individually unprotected constituent
parts, Skidmore’s theory of combination copyright would
deem substantially similar two vastly dissimilar musical
compositions, novels, and paintings for sharing some of the
same notes, words, or colors. We have already rejected such
a test as being at variance with maintaining a vigorous public
domain. See, e.g., Shaw, 919 F.2d at 1362–63.

    To the extent Skidmore’s combination theory was meant
to encompass or be a variation on the theme of the selection
and arrangement claim, the jury was adequately instructed,
as noted below. To the extent Skidmore now claims the
selection and arrangement theory was a separate claim, he
never articulated that theory at trial. But, in any event, any
omission was not in error. The trial court was not compelled
to give the instruction, nor did it really matter in the end in
light of the evidence and the jury’s finding that the relevant
portions of the songs were not substantially similar.

      Ultimately, failure to properly invoke a selection and
arrangement argument is a death knell for Skidmore’s
request for a selection and arrangement instruction. He is
not entitled to an instruction based on a legal theory that was
not presented to the jury. See Roberts v. Spalding, 783 F.2d
867, 873 (9th Cir. 1986) (“[T]he district court was under no
duty to submit to the jury proposed instructions that contain
. . . a theory not supported by the evidence . . . .”). 12 The

    12
        That both Skidmore and Led Zeppelin proposed their own version
of a selection and arrangement instruction does not affect whether the
district court was required to instruct the jury on the selection and
arrangement theory. This just reflects the common practice of
proposing, such as in this case several months ahead of trial, broad sets
of jury instructions, trial exhibits, and witness lists that may cover an
argument presented at trial. The court’s ultimate decision on instructions
depends on the proof at trial.
48                  SKIDMORE V. LED ZEPPELIN

district court committed no error by declining to instruct the
jury on selection and arrangement. 13

         4. The Jury Instructions                   Fairly     Covered
            Skidmore’s Theory

    Even though the district court did not instruct the jury on
selection and arrangement, its instructions, as a whole, fairly
and adequately covered Skidmore’s argument for extrinsic
similarity between Taurus and Stairway to Heaven. As
discussed above, Jury Instruction No. 20 explained to the
jury that an “original work may include or incorporate
elements taken from prior works or works from the public

     13
        Led Zeppelin and several amici have argued that even if Skidmore
is entitled to a selection and arrangement instruction, the standard to
determine unlawful appropriation under this theory is “virtual identity,”
not substantial similarity. We do not need to reach this issue because, as
noted above, Skidmore has not made a sufficiency of evidence argument.
But to be clear, we do not recognize a separate, heightened standard for
proving actionable copying. The standard is always substantial
similarity. Of course the degree of overlap in original expression that is
required for the similarity to be substantial is determined by the range of
possible protectable expression. See Apple Comput., 35 F.3d at 1443.
More similarities are required to infringe if the range of protectable
expression is narrow, because the similarities between the two works are
likely to cover public domain or otherwise unprotectable elements. See
Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 913–14 (9th Cir. 2010).
Thus, for works where there is a narrow range of available creative
choices, the defendant’s work would necessarily have to be “virtually
identical” to the plaintiff’s work in order to be substantially similar. We
have at times described this result as the work having a “thin” copyright.
E.g., Apple Comput., Inc., 35 F.3d at 1446–47; see also Harper House,
Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989) (“A
factual compilation receives only limited copyright protection.”). A
selection and arrangement copyright is not always thin. Compare L.A.
Printex Indus., 676 F.3d at 850 (broad selection and arrangement
copyright) with Satava, 323 F.3d at 811 (thin selection and arrangement
copyright).
                SKIDMORE V. LED ZEPPELIN                   49

domain,” and that the “original part” of the work only
requires “minimal creativity” by the author. This instruction
was immediately followed by Jury Instruction No. 21, which
explained that the taking of “original material protected by
the copyright” in “significant” amounts constituted
infringement. Accordingly, to determine whether the
Taurus deposit copy was substantially similar to the musical
composition of Stairway to Heaven, the jury needed to
determine whether “any . . . musical elements that are
original to Taurus . . . also appear in Stairway to Heaven.”
The instructions fairly and adequately covered Skidmore’s
sole argument on substantial similarity, i.e., that there were
“five things that these two songs ‘Taurus’ and ‘Stairway to
Heaven’” shared.

V. VARIOUS REMAINING CHALLENGES

       TRIAL TIME LIMITS

    Based on pretrial proceedings and the scope of proposed
testimony, before trial began, the district court advised the
parties that each side would have ten hours of witness time.
Neither party objected. Skidmore now complains the court’s
inflexibility was a due process violation. During Led
Zeppelin’s case in chief, the court advised that Skidmore’s
counsel was exceeding his time limits. Skidmore requested
“a little bit of leeway in getting additional time.” When the
court gave Skidmore ten additional minutes for cross-
examination of each of Led Zeppelin’s remaining witnesses,
Skidmore’s counsel said, “[t]hat’s fair.” After Led Zeppelin
concluded its case, Skidmore requested leave to call two
rebuttal witnesses, though he did not identify them. There
was no offer of proof and the request was denied.

   The district court was not inflexible or unforgiving.
Skidmore’s counsel was warned during the trial that he was
50              SKIDMORE V. LED ZEPPELIN

getting into “all kinds of background information and things
that really aren’t relevant to this case.” The court gave extra
time every day and in granting Skidmore extra time to
examine defense witnesses, the court reminded counsel that
his examination had been “repetitive,” included “many
questions that were irrelevant,” and included “gaps . . .
where [he] could have been presenting evidence.” Although
the court said there was “no excuse and no reason to give
[Skidmore] more time,” the court did so anyway. Skidmore
has shown no prejudice from these rulings. The district court
did not abuse its discretion in limiting trial time by being up
front about the limits and then being flexible at counsel’s
request. See Monotype Corp. v. Int’l Typeface Corp., 43
F.3d 443, 450–51 (9th Cir. 1994).

       THE DISTRICT COURT’S RESPONSE                TO   JURY
       QUESTION

    During deliberation, the jury asked to listen to “1.
Plaintiff’s audio of Taurus (guitar)” and “2. Plaintiff’s audio
of Stairway to Heaven (guitar).” During trial, Skidmore’s
witness, master guitarist Kevin Hanson, performed two
versions of the Taurus deposit copy—one with just the bass
clef part and one with the treble and bass clef parts together.
Skidmore’s counsel argued that the jury should hear the
bass-clef-only version because that version was played
repeatedly during trial whereas the version with both parts
“was never played . . . in full.” When the court asked the
jury which version it wanted to hear, one juror said “Bass
clef,” while the jury foreperson followed up and said “full
copy.” No other juror spoke up or countermanded the
foreperson’s request. The district court directed that the full
deposit-copy version be played and asked if that answered
the jury’s question. The foreperson replied, “thank you.”
Skidmore made no objection at that point and the jury heard
                 SKIDMORE V. LED ZEPPELIN                      51

the “full copy,” which includes both clefs in the introduction
to the songs. The jury made no follow-up request. Skidmore
waived any objection to the claim that there was a conflict
between jurors and any error was harmless.

        ADMISSION OF DR. FERRARA’S TESTIMONY

    Skidmore filed a motion for sanctions and to preclude
Led Zeppelin’s expert musicologist, Dr. Ferrara, from
testifying at trial. At his deposition, Dr. Ferrara testified that
he had previously analyzed the similarities between Taurus
and Stairway to Heaven sound recordings for Rondor Music
(“Rondor”), a subsidiary of Universal Music Publishing
Group. Universal Music Publishing Group was working for
Hollenbeck, Spirit’s publisher. Dr. Ferrara explained that
his analysis for Rondor had already been completed by the
time he was contacted by Led Zeppelin’s counsel. Rondor
waived any conflict and consented to Led Zeppelin retaining
Dr. Ferrara as an expert witness.

    As a preliminary matter, the district court denied
Skidmore’s motion as improperly noticed, over the page
limit, and untimely. On that basis alone, the district court’s
ruling was not an abuse of discretion. But even without these
infirmities, the district court did not err in denying the
motion. Skidmore’s challenge is based on a purported
conflict of interest that made it improper for Dr. Ferrara to
testify for Led Zeppelin without disclosing the conflict or
obtaining a waiver from Skidmore.

    This argument fails because there was no conflict of
interest. Although Rondor waived any potential conflict
from having Dr. Ferrara testify on behalf of Led Zeppelin,
even that is immaterial because Rondor does not have any
interest in this litigation. Skidmore contends that Rondor’s
parent, Universal Music, was working for Hollenbeck, an
52              SKIDMORE V. LED ZEPPELIN

entity that owed a fiduciary duty to Skidmore as a publisher
of Spirit’s music. But a music publisher does not have a
fiduciary relationship with its composers, absent special
circumstances. See Cafferty v. Scotti Bros. Records, Inc.,
969 F. Supp. 193, 205 (S.D.N.Y. 1997). Skidmore made no
showing of any special circumstances, or that Hollenbeck
was a fiduciary of the Trust. Nor did Skidmore show that
Dr. Ferrara had confidential information concerning
Skidmore. See Erickson v. Newmar Corp., 87 F.3d 298, 300
(9th Cir. 1996). Rondor retained Dr. Ferrara to obtain his
opinion on two publicly available sound recordings, which
he communicated telephonically to Rondor. All of this
occurred before Dr. Ferrera ever had contact with Led
Zeppelin’s attorneys. The district court did not abuse its
broad discretion by permitting this expert testimony. See
Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.
1980).

       ATTORNEYS’ FEES

    Warner/Chappell cross appeals the district court’s denial
of attorneys’ fees and costs under 17 U.S.C. § 505. The
Supreme Court counsels that a court has “broad leeway” to
consider the relevant factors that promote the purposes of the
Copyright Act, but the Court also has cautioned against
giving substantial weight to just one factor, and directed the
courts to “give due consideration to all . . . circumstances
relevant to granting fees.” Kirtsaeng v. John Wiley & Sons,
Inc., 136 S. Ct. 1979, 1983, 1985 (2016).

    Here, after weighing the factors and the circumstance of
the case, the district court found that litigation misconduct
and the degree of success swung solidly in favor of
Warner/Chappell, that the need for compensation weighed
slightly in favor of Warner/Chappell, but that motivation,
frivolousness, and objective reasonableness weighed
                 SKIDMORE V. LED ZEPPELIN                    53

strongly in favor of Skidmore. See Fantasy, Inc. v. Fogerty,
94 F.3d 553, 558–59 (9th Cir. 1996). Warner/Chappell’s
argument that litigation misconduct should form a sole,
independent basis for consideration is contrary to the
Supreme Court’s guidance in Kirtsaeng. The district court
did not abuse its discretion in concluding that an award of
attorneys’ fees was not appropriate in light of the Copyright
Act’s essential goals. Nor did the district court err in
declining to award costs to Warner/Chappell.

                      CONCLUSION

     This copyright case was carefully considered by the
district court and the jury. Because the 1909 Copyright Act
did not offer protection for sound recordings, Skidmore’s
one-page deposit copy defined the scope of the copyright at
issue. In line with this holding, the district court did not err
in limiting the substantial similarity analysis to the deposit
copy or the scope of the testimony on access to Taurus. As
it turns out, Skidmore’s complaint on access is moot because
the jury found that Led Zeppelin had access to the song. We
affirm the district court’s challenged jury instructions. We
take the opportunity to reject the inverse ratio rule, under
which we have permitted a lower standard of proof of
substantial similarity where there is a high degree of access.
This formulation is at odds with the copyright statute and we
overrule our cases to the contrary. Thus the district court did
not err in declining to give an inverse ratio instruction. Nor
did the district court err in its formulation of the originality
instructions, or in excluding a selection and arrangement
instruction. Viewing the jury instructions as a whole, there
was no error with respect to the instructions. Finally, we
affirm the district court with respect to the remaining trial
issues and its denial of attorneys’ fees and costs to
Warner/Chappell.
54              SKIDMORE V. LED ZEPPELIN

    The trial and appeal process has been a long climb up the
Stairway to Heaven. The parties and their counsel have
acquitted themselves well in presenting complicated
questions of copyright law. We affirm the judgment that Led
Zeppelin’s Stairway to Heaven did not infringe Spirit’s
Taurus.

     AFFIRMED.



WATFORD, Circuit Judge, concurring:

    I join the court’s opinion, with the exception of section
IV.C. I see no reason to decide whether Skidmore
adequately preserved his request for a selection-and-
arrangement instruction because, even if such an instruction
had been given, no reasonable jury could have found
infringement here.

     At trial, Skidmore predicated his theory of originality on
Taurus’ selection and arrangement of five unprotectable
musical elements in the first four measures of the song.
Specifically, Skidmore contended that Taurus uniquely
combined the following features: a five-note descending
chromatic scale in A minor; a sequence of half notes and
whole notes in the scale; a melody involving various
arpeggios and note pairs; a rhythm of successive eighth
notes; and a collection of pitches in distinct proportions.
None of those elements is subject to copyright protection in
its own right; they belong to the public domain from which
all musical composers are free to draw. See, e.g., Granite
Music Corp. v. United Artists Corp., 532 F.2d 718, 720 (9th
Cir. 1976); Copyright Office Compendium § 802.5(A) (3d
ed. 2017).
                   SKIDMORE V. LED ZEPPELIN                          55

    Skidmore can claim protection for the original selection
and arrangement of those elements, but the scope of that
protection depends on the “range of possible expression.”
Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443
(9th Cir. 1994). There are relatively few ways to express a
combination of five basic elements in just four measures,
especially given the constraints of particular musical
conventions and styles. See Darrell v. Joe Morris Music
Co., 113 F.2d 80, 80 (2d Cir. 1940) (per curiam). For
instance, once Randy Wolfe settled on using a descending
chromatic scale in A minor, there were a limited number of
chord progressions that could reasonably accompany that
bass line (while still sounding pleasant to the ear). 1

    In light of the narrow range of creative choices available
here, Skidmore “is left with only a ‘thin’ copyright, which
protects against only virtually identical copying.” Ets-Hokin
v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003); see
also Apple Computer, 35 F.3d at 1439 (“When the range of
protectable and unauthorized expression is narrow, the
appropriate standard for illicit copying is virtual identity.”).
In my view, this standard is separate from—and more
demanding than—the “substantial similarity” test. As our
cases have repeatedly recognized, the substantial-similarity
framework applies only to works with broad copyright
protection, while the virtual-identity standard governs thin
copyrights. See, e.g., L.A. Printex Industries, Inc. v.
Aeropostale, Inc., 676 F.3d 841, 851 (9th Cir. 2012); Mattel,

    1
      Skidmore argues that Taurus’ omission of one note from the
descending chromatic scale further contributed to the song’s originality.
While this alteration may represent an original use of the descending
chromatic scale, it does not change the limited scope of Taurus’
copyright. As with Skidmore’s selection-and-arrangement theory, there
are only so many ways to modify a descending chromatic scale in four
measures.
56               SKIDMORE V. LED ZEPPELIN

Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 913–14 (9th
Cir. 2010); Satava v. Lowry, 323 F.3d 805, 812 (9th Cir.
2003); Ets-Hokin, 323 F.3d at 766; Apple Computer, 35 F.3d
at 1439.

    Contrary to Skidmore’s contention, we have never held
that musical works are necessarily entitled to broad
copyright protection. We did state in Williams v. Gaye, 895
F.3d 1106 (9th Cir. 2018), that “[m]usical compositions are
not confined to a narrow range of expression.” Id. at 1120.
But we made that statement in the context of assessing the
creative choices involved in composing an entire song,
which of course could involve a broad range of expression.
See id. at 1117–18, 1120. We had no occasion there to
categorically exempt musical works from the same
principles we use to assess the scope of copyright protection
for all other works.

    Given the thin protection afforded the selection and
arrangement of basic musical elements at issue here,
Skidmore could prove infringement only if the relevant
passages of Taurus and Stairway to Heaven are virtually
identical. They are not. Undeniable and obvious differences
exist between the first four measures of both songs: The
notes in the melodies are different; the use of the treble clef
in conjunction with the bass clef is different; and the rhythm
of eighth notes is different. Those facts preclude a finding
of virtual identity. As a result, even if the district court had
given the jury a selection-and-arrangement instruction,
Skidmore’s infringement claim would have failed as a matter
of law.
                  SKIDMORE V. LED ZEPPELIN                       57

IKUTA, Circuit Judge, joined by BEA, Circuit Judge,
concurring in part and dissenting in part:

    The plaintiff’s theory of infringement in this case was
straightforward: a four-bar musical passage of Taurus that
combined an ascending line and a descending chromatic line
in a unique and memorable way was substantially similar to
the “iconic notes” of a musical passage repeated multiple
times in the first two minutes and fourteen seconds of
Stairway to Heaven. Both the plaintiff and defendant
requested jury instructions on the key legal principle
underlying this theory: that a combination of common
musical elements can be protectable under copyright law,
even if each individual element is too common on its own to
be protected. Although this legal principle is well supported
in our case law and had ample foundation in the evidence in
this case, the district court failed to give any instruction on
this theory to the jury. Without plaintiff’s requested
instruction, the jury was deprived of the opportunity to
consider the plaintiff’s central theory of the case, and the
instructions given to the jury (to the effect that common
musical elements were not protectable under copyright law)
were misleading. Therefore, I dissent from Part IV(B) to
(C).

                                 I

    It was the late 1960s when songwriter Randy
“California” Wolfe wrote a new instrumental piece which he
entitled Taurus after the astrological sign of a woman he
loved and eventually married. 1 Wolfe’s band, Spirit, played


    1
      The origin of the song remains a bit of a mystery, as Skidmore
alleged in his complaint that the song was inspired by Wolfe’s deep
58                SKIDMORE V. LED ZEPPELIN

the song regularly, and it became one of the band’s signature
numbers. There was substantial evidence that Led Zeppelin
was at least familiar with Spirit and their work. In 1968, for
instance, Led Zeppelin opened for Spirit at a concert in
Denver, and the two bands played the same concerts on other
occasions. Randy Wolfe died in 1997, and his intellectual
property passed into a trust.

    When the Supreme Court ruled in 2014 that laches would
not bar a copyright infringement lawsuit, see Petrella v
Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 668 (2014),
Michael Skidmore, the trustee for Randy Wolfe’s estate,
filed suit against Led Zeppelin. As stated in the original
complaint, Skidmore’s theory was that the “iconic notes to
‘Stairway to Heaven,’ that have enthralled generations of
fans, sound almost exactly the same as” the “unique 2
minutes and 37 second instrumental titled ‘Taurus.’”

    At trial, Skidmore presented evidence to the jury to show
the following: The deposit copy of Taurus is a single page,
comprising 18 bars of music. Skidmore focused on a four-
bar passage from this deposit copy, which Skidmore claimed
was both unique and protectable, and which was
substantially similar to a repeated musical passage in
Stairway to Heaven. The four-bar passage in Taurus
(referred to as “Section A”) is followed by a seven-measure
bridge (labeled “Section B”) in an AABAAB format.
Section A had an ascending arpeggiated melodic line
(identified in the treble clef) that included a series of two-
note melodic phrases that move from A to B, B to C, and C
to F sharp. This ascending melodic line is played over an
arpeggiated descending chromatic line (identified in the bass

affection for his bandmates from the band Spirit, some of whom had the
astrological sign Taurus.
                   SKIDMORE V. LED ZEPPELIN                          59

clef) which skipped the note “E” in its descent before
resolving harmonically. 2 According to Skidmore’s experts,
Section A of Taurus is memorable and unique. Although
descending chromatic lines are commonly used in certain
genres of music, Dr. Alexander Stewart testified that the
composer of Taurus had “found a way to use it in a way that
is unlike other works that use [a descending chromatic] line.”
Specifically, most songs employing a descending chromatic
line resolve the scale by passing through the fifth note of the
scale (here, the note E), but Taurus stops short of the fifth
note. Stewart also testified that the combination of two-note
melodic phrases in the ascending line in Section A was
“unique,” “distinct,” and “used in an original and creative
way.” Skidmore’s experts discussed a number of other
musical elements in Section A, including the rhythm, chord
progression, and duration of pitches in the minor descending
chromatic line.       Finally, Skidmore presented expert
testimony that the combination of the descending and
ascending lines, along with the other musical elements, made
Section A unique. Stewart testified that the combination of
musical elements in Section A, including “an ascending line
with unique AB, BC, C to F-sharp pairs” and “the
descending line having a similar chord progression
arpeggiated in a unique way” were “significant” and
“unique” when taken together. And Kevin Hanson, another
expert, testified that “the descending chromatic line, in
conjunction with the other arpeggiated figures in the



    2
       Led Zeppelin’s expert, Dr. Lawrence Ferrara, likewise testified
that the focus of the case was on Section A of Taurus, which had
“relevant similarities” to the “opening four measures of the guitar” that
is played six times in the first two minutes and fourteen seconds of
Stairway to Heaven.
60               SKIDMORE V. LED ZEPPELIN

ascending melody . . . combined [to] form one piece of
original music.”

    In addition to offering evidence that Section A of Taurus
was unique and original, Skidmore also presented evidence
that the opening two minutes and fourteen seconds of
Stairway to Heaven incorporated elements that were
substantially similar to Section A of Taurus. Stairway to
Heaven’s opening included a thirteen-second musical
passage (also referred to as Section A) which is repeated six
times, separated by a B section or bridge, in an AABABAA
format. Stairway to Heaven’s Section A contained an
ascending line which used a substantially identical pitch
sequence as Section A in Taurus, as well as the same
memorable two-note phrases. This ascending line played
over a descending chromatic line, which likewise skipped
over the fifth note in resolving the scale. In his closing
argument, Skidmore asserted that “the only two songs in
music history that are able to show that it skips the E was
two pieces of work: ‘Taurus’ and ‘Stairway to Heaven.’” In
addition to using the same pitch sequence, Stairway to
Heaven used the same rhythm and metric placement.

    Led Zeppelin’s defense was based on its argument that
the musical elements in Section A of Taurus were too
common to be protectable. Accordingly, it proposed the
following jury instructions. 3 Instruction No. 16 stated that
“common musical elements, such as descending chromatic
scales, arpeggios or short sequences of three notes” are not
protected by copyright. Instruction No. 20 stated that “any
elements from prior works or the public domain are not


     3
       The numbering of these three instructions corresponds to the
instructions eventually given by the court.
                    SKIDMORE V. LED ZEPPELIN                           61

considered original parts and not protected by copyright.”
And Instruction No. 21 stated:

         You must then disregard all musical elements
         that are not original to Taurus. Once you
         have disregarded all musical elements that
         are not original to Taurus, you must decide
         whether there are any remaining musical
         elements that are original to Taurus and also
         appear in Stairway to Heaven and, if so,
         whether they are substantial similarities or
         insubstantial similarities.

    In response, Skidmore proposed two instructions to
explain that while musical elements that are too common are
not protectable under copyright law, such common elements
could be protectable in combination under some
circumstances. 4 Proposed Instruction No. 35 read, in part,
that “[a] combination of individually otherwise unprotected
elements can be infringed upon.” Skidmore also proposed
Jury Instruction No. 38, entitled “Combination of
Unprotectable Elements,” which stated: “You may find a
combination of unprotectable elements to be protectable.”

    Led Zeppelin objected to both instructions and proposed
Instruction No. 29, which stated: “An author’s arrangement

     4
       The majority refers to this instruction regarding the protectability
of a combination of musical elements as a “selection and arrangement
instruction.” While I use this terminology for convenience, the words
“selection” and “arrangement” have no special significance in our
precedent; the missing instruction could equally be termed a
“combination instruction” or “compilation instruction.” See, e.g., Satava
v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (allowing that an original
“combination of unprotectable elements may qualify for copyright
protection”).
62               SKIDMORE V. LED ZEPPELIN

and selection of unprotected 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.” Skidmore objected to this formulation of the
instruction.

    The district judge considered these objections, but did
not allow the parties to make any arguments. Although the
judge conferred with the parties outside of the presence of
the jury to rule on various pretrial motions, he asked the
lawyers to recess for 45 minutes while he prepared the jury
instructions. After the recess, the judge addressed counsel,
and stated: “This is not to discuss with counsel what
instructions are going to be given and which aren’t. Both
sides have fully briefed this on the instructions, their
objections, their replies, et cetera, that I am confident that I
can just come out and give the instructions.” The judge then
appointed Skidmore’s counsel to act as “scrivener” to
“prepare a clean set of instructions,” and dictated the
approved jury instructions to Skidmore’s lawyer. The court
included Led Zeppelin’s Instruction Nos. 16, 20 and 21, but
did not include either Skidmore’s or Led Zeppelin’s version
of the selection and arrangement instruction. Skidmore’s
lawyer commented on the wording of two instructions. But
when he raised a concern regarding the omission of an
instruction on the inverse ratio rule, the court dismissed the
question brusquely, saying that the issue was not addressed
“because we weren’t giving that instruction,” and repeated,
“[w]e’re not going to give that instruction.” The judge then
ended the meeting. The court’s decision to omit any
selection and arrangement instruction was not discussed.

    On appeal, Skidmore argues that the court erred in not
giving the jury the proposed instruction.
                SKIDMORE V. LED ZEPPELIN                    63

                              II

    “A party is entitled to an instruction about his or her
theory of the case if it is supported by law and has foundation
in the evidence.” Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002) (citing Jenkins v. Union Pac. R.R. Co., 22 F.3d
206, 210 (9th Cir. 1994)). A district court errs when it
“rejects proposed jury instructions that are properly
supported by the law and the evidence.” Clem v. Lomeli, 566
F.3d 1177, 1181 (9th Cir. 2009). Moreover, “[j]ury
instructions must be formulated so that they fairly and
adequately cover the issues presented, correctly state the
law, and are not misleading.” Duran v. City of Maywood,
221 F.3d 1127, 1130 (9th Cir. 2000) (per curiam) (quoting
Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th Cir.
1999)). “In evaluating jury instructions, prejudicial error
results 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) (cleaned up) (quoting In re Asbestos Cases, 847
F.2d 523, 524 (9th Cir. 1988)).

   Skidmore’s request for an instruction that “a
combination of unprotectable elements [is] protectable” is
supported by both law and evidence.

    First, as the majority agrees, the principle underlying
Skidmore’s requested jury instruction is well-supported in
law. Maj. Op. at 44–45. The Supreme Court has made clear
that even a work “that contains absolutely no protectible . . .
expression” can meet “the constitutional minimum for
copyright protection if it features an original selection or
arrangement.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 348 (1991). We have applied this principle to
musical elements. In doing so, we do not draw a distinction
between a “combination,” “compilation,” and a “selection
64              SKIDMORE V. LED ZEPPELIN

and arrangement” of musical elements. Thus, in Three Boys
Music Corp. v. Bolton, we upheld a jury finding of
“infringement based on a unique compilation” of five
unprotectable musical elements: “(1) the title hook phrase
(including the lyric, rhythm, and pitch); (2) the shifted
cadence; (3) the instrumental figures; (4) the verse/chorus
relationship; and (5) the fade ending.” 212 F.3d 477, 485
(9th Cir. 2000). Similarly, in Swirsky v. Carey, we
disapproved of the district court’s approach to pulling
“elements out of a song individually, without also looking at
them in combination,” explaining that to “disregard chord
progression, key, tempo, rhythm, and genre is to ignore the
fact that a substantial similarity [between copyrighted and
allegedly infringing works] can be found in a combination
of elements, even if those elements are individually
unprotected.” 376 F.3d 841, 848 (9th Cir. 2004). Even
though “chord progressions may not be individually
protected, if in combination with rhythm and pitch sequence,
they show the chorus of [a work] to be substantially similar
to [another work], infringement can be found.” Id.; see also
Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (applying
this principle to visual arts, and holding that “a combination
of unprotectable elements may qualify for copyright
protection” so long as the “combination constitutes an
original work of authorship” and is “sufficiently original to
merit protection”) (emphasis and citations omitted).
Accordingly, the legal basis for an instruction that a
combination of unprotectable elements may be protectable
under copyright law is well-established.

    Second, the evidence introduced at trial was sufficient
for the court to instruct the jury on this principle. Both of
Skidmore’s experts testified that Section A of Taurus was
original and creative and gave Taurus a distinct and
memorable sound. Both also testified that the combination
                SKIDMORE V. LED ZEPPELIN                    65

of musical elements present in Section A of Taurus was
substantially similar to the six thirteen-second passages in
Section A of Stairway to Heaven. This evidence is sufficient
for a reasonable juror to conclude that Section A of Taurus
was protectable, and that the repeated appearance of a
substantially similar musical passage in the first two minutes
and fourteen seconds of Stairway to Heaven constituted
infringement. Because Skidmore’s proposed instruction had
a foundation in law and was supported by the evidence, the
district court erred in declining to give it.

    This error cut the heart out of Skidmore’s case. Without
this instruction, the three instructions given by the court
regarding the unprotectability of common elements
(Instruction Nos. 16, 20 and 21) told the jury that a
descending chromatic scale, arpeggios, and other common
elements are not protected by copyright, and that the jury
must disregard all such elements. In other words, the jury
was told to disregard the precise elements that Skidmore’s
experts testified had been combined in a unique and original
way, and thus the district court improperly foreclosed the
possibility that Taurus’s combination of a descending
chromatic line (which skipped the note E) and an ascending
line using memorable note pairs was protected. Therefore,
while Instruction Nos. 16, 20 and 21 are correct statements
of the law, they are misleading in omitting the principle that
a combination of unprotected elements can be protected. As
such, the jury instructions establish a legal principle that is
erroneous, and if allowed to stand, establish a mistaken view
of copyright protection. Reversal for a new trial is required.

                              III

   The majority’s conclusion that “the district court did not
commit any error” in failing to give the jury a selection and
66                  SKIDMORE V. LED ZEPPELIN

arrangement instruction is wrong as a matter of law. 5 Maj.
Op. at 43. First, the majority makes a legal error in
concluding that Skidmore was not entitled to a selection and
arrangement instruction because “Skidmore never presented
the argument to the jury.” Maj. Op. at 43. Rather, according
to the majority, Skidmore’s copyright infringement claim
was based on “disparate categories of unprotectable
elements,” which the majority describes as the “minor
chromatic line and associated chords; duration of pitches of
minor chromatic line; melody placed over the descending
chromatic line consisting of combination of arpeggios and
two-note sequences; rhythm of steady 8th note beats; and
pitch collection.” The majority claims that Skidmore “never
argued how these musical components related to each other
to create the overall design, pattern, or synthesis.” Maj. Op
at 44.

    The majority’s characterization of Skidmore’s case is
belied by both the trial record and by common sense.
Hanson testified that Section A of Taurus had the holistic
musical design that the majority says is lacking from
Skidmore’s argument; among other things, “the descending
chromatic line, in conjunction with the other arpeggiated
figures in the ascending melody . . . combined [to] form one
piece of original music.” Stewart also testified that the
combination of musical elements present in Section A of
Taurus was “unique and original.” And in closing argument,
contrary to the majority’s contention, Maj. Op. at 43,

     5
      Because the majority concludes that the district court “did not
commit any error” at all, Maj. Op. at 43, it is irrelevant to the majority’s
decision whether Skidmore preserved his claim of error and, if not,
whether the district court’s error was plain. Because the majority’s
discussion of these points is unnecessary, I focus on the majority’s
erroneous reasoning regarding the merits of the district court’s error.
                   SKIDMORE V. LED ZEPPELIN                          67

Skidmore reiterated that it was the combination of a
descending chromatic line and ascending line that made
Taurus unique and protectable. This is a paradigmatic
“selection and arrangement” theory, similar to the one we
approved of in Three Boys, 212 F.3d at 485 (upholding a jury
finding of infringement based on a “unique compilation of
[musical] elements”).

    Moreover, the majority’s claim that Skidmore’s
selection and arrangement argument fails because his theory
was based on “random similarities scattered throughout the
works,” Maj. Op. at 45 (emphasis omitted), is unreasonable
on its face given the brief nature of the passage Skidmore
argued was protected. 6 As the majority acknowledges, Maj.
Op. at 43, Section A of Taurus consists of only four bars of
music. And Skidmore argued that the combination of the
musical elements in this passage (the ascending melodic line
is played over an arpeggiated descending chromatic line
which skipped the note “E” in its descent) made it a unique
piece of original music that was substantially similar to a
specific thirteen-second passage in Stairway to Heaven. Nor
does the trial record support the majority’s claim that the
similarities were “scattered throughout” Section A of

    6
       The concurrence’s claim that Taurus is entitled to meager
copyright protection because there “are relatively few ways to express a
combination” of notes “in just four measures,” and because there is only
a “narrow range of creative choices available here,” Concurrence at 55,
would come as a surprise to the experts who opined on Taurus – and
indeed, would likely surprise any talented composer. Like words,
musical notes are subject to a range of expression limited only by the
imagination and skill of the artist. A poet may select and arrange a mere
16 words (all of them common and unprotectable by themselves) so they
are as memorable and unique as a Shakespeare play. See, e.g., William
Carlos Williams, The Red Wheelbarrow, in THE COLLECTED POEMS OF
WILLIAM CARLOS WILLIAMS, VOLUME I, 1909–1939 at 224 (A. Walton
Litz & Christopher MacGowan eds., 1986).
68              SKIDMORE V. LED ZEPPELIN

Taurus; rather, Skidmore explained at trial that the various
musical elements that were combined in an original way to
form Taurus played “simultaneously.” There is simply no
support in the record for the majority’s theory that
Skidmore’s infringement claim was based on random
“disparate categories of unprotectable elements” in Taurus
that merely had counterparts in Stairway to Heaven. Maj.
Op. at 45.

    In short, the majority’s misunderstanding of the evidence
and its conclusion that the musical elements identified by
Skidmore “do not cohere to form a holistic musical design”
as a matter of law, Maj. Op. at 45, provide a good lesson as
to why, as an appellate body, we are foreclosed from
determining whether an identified combination of musical
elements is original. We are not well situated to determine
whether a musical passage is original; such a determination
should have been left up to a properly instructed jury. See
Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d
850, 851 (9th Cir. 1938). Nor should we determine whether
the four bars at issue meet some judicially constructed
standard for “holistic musical design.”          Bleistein v.
Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It
would be a dangerous undertaking for persons trained only
to the law to constitute themselves final judges of the worth
of pictorial illustrations, outside of the narrowest and most
obvious limits.”). But without an instruction that a
combination of unprotectable elements can be protectable if
combined in an original way, the jury in Skidmore’s case
was deprived of the opportunity to pass judgment on
Skidmore’s selection and arrangement theory.
                 SKIDMORE V. LED ZEPPELIN                     69

                               IV

    Although unnecessary to its resolution, the majority’s
rulings on forfeiture and plain error are also wrong. Maj.
Op. at 39–43.

                               A

    First, Skidmore did not forfeit his objection to the district
court’s omission of his selection and arrangement
instruction. As we have previously explained, a party need
not make a formal objection to the omission of a jury
instruction if the party has made the district court “fully
aware of a [party’s] position” with respect to a jury
instruction, Brown v. AVEMCO Inv. Corp., 603 F.2d 1367,
1371 (9th Cir. 1979), such as by raising the issue on multiple
occasions, see Dorn, 397 F.3d at 1189, and the district court
has made clear that it would not give the instruction, see id.
(holding that party did not have to object to the underlying
jury instruction when the court was fully informed regarding
the party’s position on the jury instructions and “any further
objection would have been superfluous and futile”); Brown,
603 F.2d at 1373 (holding that the party preserved its
objection to a jury instruction when the court was aware of
the issue and it was clear that the court would not change its
mind).

    Here, as in Brown, the judge was fully aware of
Skidmore’s position on the requested jury instruction.
Skidmore had proposed two jury instructions on the issue,
and questioned witnesses at trial about the creative
combination of various musical elements in Taurus. Led
Zeppelin even cited Skidmore’s reliance on a selection and
arrangement theory as the rationale for proposing a selection
and arrangement instruction of its own, which it described as
“crucial.” Moreover, as in Dorn, objecting would have been
70               SKIDMORE V. LED ZEPPELIN

pointless. The judge made clear that he had already heard
all the argument he would need, and that he did not want to
discuss which instructions “are going to be given and which
aren’t” with counsel. Although the majority discounts the
effect of the judge’s warning because Skidmore sought to
clarify or correct the jury instructions on other issues, the
judge brusquely silenced Skidmore when he mentioned the
omission of an instruction on the inverse ratio rule. At that
point, any objection would be “superfluous and futile as well
as contrary to the court’s warning.” Dorn, 397 F.3d at 1189.
We do not know what objections Skidmore would have
raised if not for the court’s prefatory warning that began the
conference and its sharp rejection of Skidmore’s request at
the close of the conference; the majority thus reads too much
into Skidmore’s effort to open the door to further discussion
by assuring the court there would only be “one last thing.”
Given the imbalance of power that exists between a judge
and a litigant, we should be careful not to require a litigant
to defy explicit warnings from the court. Accordingly,
Skidmore preserved his challenge to the omission of a
selection and arrangement instruction, and the majority’s
review should have been de novo. See Gulliford v. Pierce
Cty., 136 F.3d 1345, 1348 (9th Cir. 1998).

                               B

    Second, even if Skidmore had forfeited his objection to
the omission of the selection and arrangement instruction,
the district court’s failure to give this instruction – which had
been requested by both parties – was plainly erroneous, and
the majority’s conclusion to the contrary is wrong. Under
our plain error jurisprudence, “[w]e may exercise our
discretion to correct a district court on plain error review
when the following factors are met: (1) the district court
erred; (2) the error was obvious or plain; (3) the error
                 SKIDMORE V. LED ZEPPELIN                     71

affected substantial rights; and (4) the error ‘seriously
impaired the fairness, integrity, or public reputation of
judicial proceedings.’” Hoard v. Hartman, 904 F.3d 780,
787 (9th Cir. 2018) (quoting C.B. v. City of Sonora, 769 F.3d
1005, 1018–19 (2014)). An error affects substantial rights
when it “affect[s] the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734
(1993); see also Bearchild v. Cobban, 947 F.3d 1130, 1139
(9th Cir. 2020) (“We will usually find sufficient prejudice to
warrant reversal where ‘it is impossible to determine from
the jury’s verdict and evidentiary record that the jury would
have reached the same result had it been properly
instructed.’”) (quoting Hoard, 904 F.3d at 791)

    We recently found the district court’s instructional error
met this standard in Hoard, where the plaintiff brought a
§ 1983 claim against an officer who allegedly had violated
his right to be free from excessive force. 904 F.3d at 785.
In that case, the district court (with plaintiff’s counsel’s
approval) provided an erroneous definition of the word
“sadistically” to the jury. Id. at 786. Because this definition
“saddled [the plaintiff] with the unnecessary and
exceedingly difficult burden of proving that the officer was
not just cruel, but sadistic as well,” id. at 782, and made it
difficult for the plaintiff to prevail, we held that “th[e] error
likely prejudiced the outcome of the case and—left
uncorrected—would contribute to a miscarriage of justice.”
Id. at 787. Therefore, we vacated the district court’s
judgment and remanded. Id.

    Here, as in Hoard, all four prongs of the plain error test
are met. For the reasons previously explained, the district
court erred by failing to give the crucial selection and
arrangement instruction requested by both parties.
Moreover, this error was obvious or plain: Skidmore
72               SKIDMORE V. LED ZEPPELIN

presented enough evidence at trial supporting the selection
and arrangement theory which had been recognized by both
parties as Skidmore’s central theory at trial. Omitting the
instruction in spite of the parties’ consensus is an “error that
is so clear-cut, so obvious, a competent district judge should
be able to avoid it without benefit of objection.” United
States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.
2011) (quoting United States v. Truman, 122 F.3d 1167,
1170 (9th Cir. 1997)); see also Hoard, 904 F.3d at 790
(explaining that it must have been “sufficiently clear at the
time of trial” that the instructions were erroneous for the
error to be plain).

    Moreover, the error was sufficiently prejudicial with
respect to the outcome of the case, given that the omission
of the instruction—which “saddled [Skidmore] with the
unnecessary and exceedingly difficult burden of proving”
that the four bars in Stairway to Heaven were substantially
similar to Taurus without relying on the unique way in which
musical elements in Taurus were combined— necessarily
precluded the jury from finding in Skidmore’s favor. Hoard,
904 F.3d at 782. Furthermore, by introducing testimony
from two experts on the issue, Skidmore “introduced
evidence from which a jury could have found” substantial
similarity, Bearchild, 947 F.3d at 1148 such that it is
“impossible to determine whether the jury would have
reached the same result had it been properly instructed,” id.
at 1134. This is enough under our law to show that the error
affected substantial rights.

    Finally, as in Hoard, if “left uncorrected[, this error]
would contribute to a miscarriage of justice.” 904 F.3d at
787. It is clear that the district court’s failure to give a
correct instruction deprived Skidmore “of a meaningful and
fair opportunity” to present his claim. See id.; Bearchild,
                 SKIDMORE V. LED ZEPPELIN                     73

947 F.3d at 1149 (“Because [plaintiff’s] ability to pursue his
claim was fundamentally diminished by the jury instructions
in this case, the final prong of the plain error test is
satisfied.”). Skidmore had adduced sufficient evidence for a
reasonable juror to find that Taurus was protectable under
copyright law, and that there was a substantial similarity
between Stairway to Heaven and the Taurus deposit copy, as
the district court’s prior rejection of Led Zeppelin’s
summary judgment motion confirmed. Therefore, the
omission of the selection and arrangement instruction not
only “placed a heavy thumb on the scale in favor of the
[d]efendants,” Hoard, 904 F.3d at 792, but decided the case
entirely. Accordingly, the district court’s error was plain,
and just as in Hoard, we must vacate the district court’s
plainly erroneous ruling.

                              ***

     The majority’s rulings on forfeiture, plain error, and the
merits are redundant and inconsistent. If there is no error at
all, the majority had no need to reach forfeiture or plain error.
Instead, the majority touches all three doctrines and makes
each of them worse. Nevertheless, my key concern is the
majority’s erroneous legal ruling on whether the four-bar
instrumental passage in Taurus was protectable and
substantially similar to the “iconic” opening bars of Stairway
to Heaven. Unlike the rulings on forfeiture and plain error,
this substantive ruling weakens copyright protection for
musicians by robbing them of the ability to protect a unique
way of combining musical elements. Therefore, I dissent
from Parts IV(B) to (C) of the majority opinion.
