"Spirit's" Lawyer Says Led Zeppelin "Greatest Cover Band Of All Time"

This Bar-Brawling Lawyer Might Just Take Down Led Zeppelin

Criticized, sanctioned, and almost imprisoned, Francis Malofiy threatens to sully the biggest name in 20th century rock.

By Vernon Silver | May 4, 2016

From 

In a cramped suburban Philadelphia office piled high with file folders and documents, Francis Malofiy grabs a steel-stringed acoustic guitar from the corner and places it on his knee. As the 38-year-old lawyer starts to play, the first few notes sound unmistakably like those in Stairway to Heaven.

Or do they? Malofiy claims Led Zeppelin filched the iconic arpeggio from a long-forgotten band named Spirit. According to his copyright infringement suit, the tune he’s playing is actually called Taurus, and it was used by one of the biggest rock bands ever in its most famous song—without credit to a guitarist who died in obscurity. That's what Malofiy plans to tell a Los Angeles jury next month in a case that arguably threatens Led Zeppelin's place in the rock 'n' roll firmament and to dent the half-billion dollars the song has earned.

Malofiy, like many his age, grew up with Led Zeppelin posters tacked to his bedroom wall. That teen adulation has since dissipated, due to what he says is a lack of originality. “They’re the greatest cover band of all history,” Malofiy contends.

Short on time, he puts down the guitar and returns to digging out papers and assembling last-minute filings, trying not to miss a flight to Los Angeles for a pretrial hearing. His ramshackle digs, located in a two-story brick building he shares with a few doctors, are the unlikely staging ground for a David-and-Goliath battle worthy of, well, a Led Zeppelin song. (He uses his middle name for his practice,Francis Alexander LLC.)

Early last month, a federal judge ruled that Jimmy Page, the band's guitarist, and singer Robert Plant, the credited writers of Stairway to Heaven, should face trial over the song's provenance, putting tens of millions of dollars on the line. To get this far, Malofiy has survived an onslaught of legal pokes, pivots, and frontal assaults from well-funded opposing counsel, led by Helene Freeman of New York's Phillips Nizer and Peter J. Anderson of Santa Monica, Calif., who have represented Sony Corp., Madonna, and even the band *NSYNC. (The attorneys declined to comment on theStairway to Heaven case.)

“They’re the greatest cover band of all history”

Malofiy's lawsuit is the climax of an intensifying drumbeat of similar allegations leveled at Led Zeppelin over the years. American blues and folk songwriters from whom the British band drew inspiration have brought legal challenges for decades, often successfully. Since its 1969 debut album, Led Zeppelin has altered the credits and redirected portions of its royalties for some of its biggest songs, including Whole Lotta Love and Babe I’m Gonna Leave You. A copyright infringement suit over Dazed and Confused was settled in 2012. Now the band's biggest hit is under scrutiny.

Malofiy gives the impression he’d like to be a rock star, too, and not just your run-of-the-mill intellectual-property litigator.

Sporting a beard, leather jacket, and a white bandana topped by a trilby, he looks like a cross between Frank Sinatra and Keith Richards. As an attorney, he brings flourishes to his cause that might get others laughed out of court. His original complaint was filed using a typeface based on Led Zeppelin album-cover art. His attaché bags are sawed-off, velvet-lined Fender guitar cases (one tweed, one black), and they match the harmonica boxes he uses to store his courtroom supplies.

Now, Malofiy just needs to get to the airport. The lawyer’s 1972 Chevy pickup, parked in front of his building, won’t start. He summons a friend who works at Philadelphia's Navy Yard. Minutes later, a 1984 Oldsmobile lowrider with peeling, red paint pulls up, and we jump in. Arriving at the terminal with only minutes to spare, heads turn as Steely Dan’s Hey Nineteen blasts from the car's custom sound system.

Malofiy traces the Stairway to Heaven case back almost 50 years. Near the end of 1968—the year Taurus was released—Led Zeppelin was first gaining traction, having been formed from the remains of the Yardbirds. (The band toured at first as the New Yardbirds.) Page and Plant, along with bassist John Paul Jones and drummer John Bonham, played with Spirit in their first U.S. concert. It's unclear if Spirit played Taurus that night in Denver or if Led Zeppelin heard it some other time, but Stairway to Heaven was released three years later. Fast-forward to the 21st century: Malofiy, through a series of coincidences, would come to represent the trust of Randy Craig Wolfe, the late guitarist for Spirit who went by the stage name Randy California. Wolfe wrote Taurus.

Dick Van Dyke and Julie Andrews were the real influences behindStairway to Heaven?

Lawyers for Led Zeppelin have argued that any similarity between the two songs was limited to a “descending chromatic scale of pitches” known for centuries, and certainly too commonplace to be entitled to protection. Page, 72, said in one court filing that he had already been familiar with the musical structure, having heard it in, of all places, Chim Chim Cher-ee from the 1964 soundtrack of Mary Poppins. Malofiy derisively dubs this the "Mary Poppins defense." On occasion, he breaks into a fake English accent, imitating Page, the archetype of the hard rock guitarist, talking about how Dick Van Dyke and Julie Andrews were the real influences behindStairway to Heaven.

As far as the money at stake is concerned, the most recent yardstick is the Blurred Lines case, in which a Los Angeles jury last year ordered singers Pharrell Williams and Robin Thicke to pay $7.4 million for lifting from Marvin Gaye's Got to Give It Up. (A judge cut the award to about $5.3 million, and the case is now on appeal.) To reach a figure specific to Led Zeppelin, Malofiy starts with a 2008 agreement Page and Plant made with Warner/Chappell Music. Under that deal, the songwriters get $60 million over 10 years in exchange for granting the company the right to use Stairway to Heaven and other songs, according to court papers. Malofiy contends that at least two-thirds of that amount should be allocated to the infringing period for Taurus. That would be $40 million.

Chart taken from page four of the suit filed by Francis Malofiy.

Source: United States District Court

Yet, in a dramatic declaration following the April 25 pretrial hearing, Malofiy said he's willing to drop the case entirely for just $1–if Page and Plant agree to add Wolfe to the song's credits (which would pay off in future royalties for the trust). If Malofiy and the trust win or settle, they have pledged the money to the Randy California Project, which provides instruments and education to underprivileged students in Ventura County, Calif., where Wolfe lived, and Quincy, Mass., where the trustee, former music writer Mick Skidmore, resides. 

"Part of my responsibility to the trust is protecting Randy's memory and spirit," Malofiy says.

Malofiy grew up in Philadelphia, the son of Greek and Ukrainian immigrants, and largely stayed put. His mother worked as a bank teller and his father was a bookkeeper. After graduating from Pennsylvania State University, he attended Temple University's law school, getting his degree in 2007. While awaiting the results of the bar exam, he said he worked as a recording engineer, producer, and musician, playing nearby gigs. 

A bar brawl, however, almost derailed his career. In August 2008, he smashed a beer glass across the face of a fellow patron at a Philadelphia pub, disfiguring the man. "Boom, knocked the guy out," Malofiy recalls. The police arrested him on a slew of charges, including assault.

Prosecutors went to trial with what appeared to be damning videotaped evidence of the confrontation. Yet Malofiy, facing the end of his career—and potentially, a decade or more in prison—took the stand in his defense. He conjured an alternate scene for jurors in which he'd feared for his life and needed to protect his girlfriend from a manhandling mob. "He had already hit me twice, blocked my exit-way," he testified. "I was scared for my safety and my girlfriend's safety, and his friends had just yelled 'fight' and came up to me with fists drawn. I thought I had no other option." The jury bought it and in August 2010 found Malofiy not guilty on all counts.

Since then, Malofiy has found himself in scrapes of a different sort, particularly with judges who aren't fans of his litigation tactics. He's currently fighting suspension from Philadelphia federal court for allegedly violating the rules of professional conduct. The sanction stems from a copyright infringement case in which he sued several musicians, including the singer Usher. The judge said Malofiy solicited an affidavit from a target of the lawsuit who didn’t have a lawyer or even understand he was a defendant. Malofiy contends that the man was fully aware Malofiy was the opposing lawyer and that deposition transcripts show he acknowledged it. Malofiy's suspension, which could block him from practicing in other federal courts, including in Los Angeles, has been delayed while he appeals.

The first page of the suit filed by Francis Malofiy against Led Zeppelin.

Source: United States District Court

The judge in the case, Paul S. Diamond, has also criticized Malofiy as “abusive” toward opposing lawyers, citing statements he made, including (perhaps channeling Jack Nicholson) “You can’t handle the truth” and “Don’t be a girl about this.”

“I reluctantly accept that Malofiy’s conduct was, at least in part, a function of the grotesquely exaggerated zeal common to less experienced lawyers,” Diamond wrote.

In another lawsuit, lawyers for Volvo accused Malofiy of altering a company document he presented to the court. Malofiy countered that it was clear that the exhibit, filed in a 2013 federal class action, was an illustration with arrows and other highlights not intended to represent an untouched original. (Malofiy's lawsuit alleged that Volvo falsely led consumers to believe the back doors of the Volvo 850 had steel anti-crash safety bars; the suit is suspended pending resolution of appeals in a similar state court case that Volvo won at trial.)

Malofiy says these recurring run-ins with judges and powerful defendants stem from his outsider status. "I don’t golf with them. I don’t play their game," he says.

The Stairway to Heaven lawsuit, meanwhile, almost never happened. On Jan. 2, 1997, Wolfe drowned while rescuing his 12-year-old son from a rip current in Hawaii. Before his death, he had mentioned in interviews how he felt cheated out of credit for the Led Zeppelin song, but he had never acted on it. His song rights went to a trust overseen by his mother, who was assisted by Skidmore, a London-born music writer who had helped compile new Spirit albums from California's old tapes.

After she died in 2009, Skidmore took over the collection of what he has described as modest royalties for the trust. He agreed that Wolfe deserved a share of Stairway to Heaven, but he couldn't fathom how to do anything about it. When interviewed in 2014, Skidmore said he'd assumed that the statute of limitations had expired and that taking on Led Zeppelin would be folly. "They've got more money than anyone," said Skidmore, who parts his long, blond hair down the middle and wears a gold hoop earring. "I don’t have the resources."

At the time, Malofiy was representing Spirit's founding bassist, Mark Andes. Andes was battling the Rock 'n' Roll Hall of Fame over the use of his image in tributes to the band Heart, for whom he had played for a decade. (He hadn't been inducted.) While Andes wanted to pursue a case against Led Zeppelin, he didn’t have legal standing. Instead, Malofiy met with Skidmore at a Boston pub and persuaded him to move forward with an infringement suit. (Malofiy declined to comment on his fee arrangements.)

On May 16, 2014, when Bloomberg Businessweek published its first story saying Malofiy planned to sue, the three-year statute of limitations stood out as one of the hurdles he would need to overcome. Three days later, the U.S. Supreme Court shifted the goal posts in his favor. In its decision (PDF), over the screenplay for the 1980 filmRaging Bull, the majority held that there is no cut-off date for seeking damages on old copyright claims, just that back payments are limited to earnings from the previous three years.

“They've got more money than anyone”

Malofiy called the ruling huge. "I don't know what Randy California was doing, buzzing around in the Supreme Court's head," he said at the time.

Less than two weeks later, on May 31, Malofiy filed his complaint in Philadelphia federal court. Along with copyright infringement, he claimed "falsification of Rock 'n' Roll history," a novel legal claim to say the least. He signed the bottom of the complaint in red marker, with a simple, big F and a five-pointed star, not unlike one of the runes that members of Led Zeppelin used to identify themselves. The court later moved the case to Los Angeles, rejecting Malofiy's argument that a 1985 Led Zeppelin reunion in Philadelphia for Live Aid made his hometown the right venue.

That Malofiy has gotten this far is remarkable. When he flew to London to depose Page and Plant, he was such a rookie traveler that he didn't know to get frequent-flier miles. His court filings, sent electronically (often seconds before deadline), have contained typos and colloquialisms. ("Throwing shade" isn't standard legalese.) Though he has local co-counsel in California, Malofiy said he has handled most of the paperwork and depositions himself.

His most important victory to date came on April 8, when U.S. District Judge R. Gary Klausner in Los Angeles let the Stairway to Heaven copyright infringement claim go forward, saying there's enough evidence for a jury to weigh whether there was “substantial similarity” between Taurus and the finger-plucked opening notes ofStairway. 

Having made his flight out of Philadelphia, Malofiy arrived in Los Angeles federal court on April 25 looking like the lawyer he is. The beard, leather jacket, and trilby are gone, replaced by a dark blue suit with a red-and-blue tie. He says “if it pleases the court” a lot.

Despite the makeover, not everything goes his way. The story he hoped to tell the jury next month when the trial begins was that Page and Plant have a history of co-opting the work of others. But Klausner agrees that Led Zeppelin’s previous copyright troubles should be off-limits. He says the trial should take just a few days and must focus on four issues: the validity of the Taurus copyright; similarities between the two songs; Led Zeppelin’s access to Taurus; and financial damages. The judge also warns the lawyers that they should behave themselves in his courtroom. “If you don’t, the court will come down heavily on you,” he says. “Civility is a big thing.”

Back in Philadelphia, Malofiy likens the battle over Stairway to Heaven to the early bouts of Philadelphia's favorite fictional son, Rocky Balboa: Win or lose, he says, the underdog will have rewritten rock history.

—With assistance from Edvard Pettersson in Los Angeles federal court.