Led Zeppelin, â•œStairway to Heaven,â•š and Cognitive Aging: Implications for Laches in the Copyright Context

21 NEV. L.J. 1261

1261

LED ZEPPELIN, “STAIRWAY TO HEAVEN,”

AND COGNITIVE AGING: IMPLICATIONS

FOR LACHES IN THE COPYRIGHT CONTEXT

John M. McCormick-Huhn, Ph.D.

TABLE OF CONTENTS

INTRODUCTION .............................................................................................. 1262

I. COPYRIGHT LAW ............................................................................... 1265

II. DOCTRINE OF LACHES ....................................................................... 1268

A. Laches 101 and its Application to Copyright Law ..................... 1268

B. Supreme Court Greatly Limits Laches in the Copyright

Context ....................................................................................... 1270

III. AGING ROCK BANDS AND COGNITIVE AGING ................................... 1273

A. Led Zeppelin as a Case Study on Aging, Memory, and

B. Considering Copyright Infringement in the Shadow of

Psychology and Aging ................................................................ 1275

C. Episodic and Autobiographical Memories ................................ 1276

1. Episodic Memory ................................................................. 1276

2. Autobiographical Memory ................................................... 1277

D. Age-Related Declines in Autobiographical and Episodic

Memory ...................................................................................... 1278

E. Why Contextual Memory Declines (The Theories) .................... 1281

1. Recollection versus Familiarity ........................................... 1281

2. Fuzzy-Trace Theory ............................................................. 1282

3. Neuroimaging and Neuroanatomy ...................................... 1282

IV. COGNITIVE AGING APPLIED TO LACHES & COPYRIGHT LAW ........... 1284

A. An Aging Nation and Why Aging Matters in Copyright ............ 1284

* Editor-in-Chief, Nevada Law Journal, Volume 21; J.D., University of Nevada, Las Vegas,

2021; Ph.D. (cognitive psychology), Pennsylvania State University, 2018; M.S., Pennsylva-

nia State University, 2015; B.A., Rutgers University-Camden, 2013. I am indebted to the

entire Nevada Law Journal team, with particular appreciation for the careful edits made on

this student note by Hannah Nelson, Greg Cloward, Alexis Taitel, Elizabeth Davenport, and

Katrina Weil. I benefited from the support and feedback from Professor Marketa Trimble,

Dr. Jennifer Robbennolt, and Professor Jean Sternlight. Finally, and certainly not least, I

dedicate this Note to my dearest friend and wife, Dr. Kaitlin McCormick-Huhn, who remains

my first sounding board and greatest supporter.

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B. The Aging Artist(s), Their Copyright(s), and the Aging Brain .. 1285

C. A Return to Led Zeppelin ........................................................... 1287

V. PROPOSAL .......................................................................................... 1290

A. Judicial Intervention .................................................................. 1291

B. Congressional Intervention ........................................................ 1293

CONCLUSION ................................................................................................. 1296

INTRODUCTION

During the Kennedy Center 2012 Honors ceremony,

comedian Jack Black

paid tribute to one of that year’s recipients—Led Zeppelin—with its three sur-

viving members in attendance: Robert Plant, Jimmy Page, and John Paul

Jones.

In his introductory remarks, Black called Led Zeppelin the “greatest

rock and roll band of all time.”

Then, moments later, Ann and Nancy Williams

of the rock band Heart, performed an electrifying tribute performance to which

even President Barack Obama appeared to rock out.

The song that the two

women performed was none other than Led Zeppelin’s iconic song, “Stairway

to Heaven.”

Led Zeppelin has been creating and performing music for decades, ever

since its formation in 1968 and its debut in the United States with its first con-

cert the same year.

During the band’s United States debut, it opened for anoth-

The Kennedy Center Honors are lifetime achievement awards that “recogniz[e] the life-

long accomplishments and extraordinary talents of [the United States’] most-prestigious art-

ists.” Kennedy Center Honors Highlights 2019, THE KENNEDY CENTER, https://www.kenned

y-center.org/whats-on/honors/ [https://perma.cc/95WV-J2B3]. Several (out of a list of many)

notable honorees include Carole King, Lionel Richie, Cicely Tyson, Cher, Lily Tomlin,

Meryl Streep, and Bruce Springsteen. Id.

David Wismer, Heart’s Ann Wilson Kills Led Zeppelin’s ‘Stairway To Heaven’ At Kenne-

dy Center Honors, FORBES (Dec. 27, 2012, 1:37 PM), https://www.forbes.com/sites/davidwi

smer/2012/12/27/hearts-ann-wilson-kills-led-zeppelins-stairway-to-heaven-at-kennedy-cente

r-awards-see-it-here/#21377bc36c66 [https://perma.cc/8SEB-PKB2].

The Kennedy Center Honors, Led Zeppelin Tribute—Jack Black—2012 Kennedy Center

Honors, YOUTUBE (Dec. 12, 2013), https://www.youtube.com/watch?v=JcsCWRoQ_jQ

[https://perma.cc/5MKQ-9PRR].

See Don Jack, Heart—Stairway to Heaven (Live at Kennedy Center Honors), YOUTUBE

(June 15, 2014), https://www.youtube.com/watch?v=LFxOaDeJmXk [https://perma.cc/9CX

T-Q3FX].

Wismer, supra note 2. “ ‘Stairway to Heaven’ is a psychedelic rock masterpiece with icon-

ic guitar parts, including an acoustic guitar intro that incorporates a descending chromatic

minor chord progression in A minor.” Grayson O’Saile, “Spirit” Quest: The Daunting

“Stairway” for Plaintiff in the Led Zeppelin Copyright Litigation, WAKE FOREST L. REV.:

CURRENT ISSUES BLOG (Mar. 15, 2020), http://wakeforestlawreview.com/2020/03/spirit-

quest-the-daunting-stairway-for-plaintiff-in-the-led-zeppelin-copyright-litigation/

[https://perma.cc/PB6L-W6UY].

Plaintiff’s Amended Complaint at 7, Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS

51006 (C.D. Cal. 2016) (No. 2:14-cv-03089) [hereinafter Plaintiff’s Amended Complaint].

21 NEV. L.J. 1261

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er band named Spirit. Led Zeppelin wrote its famous “Stairway to Heaven” in

early 1970

and released it to the public in 1971.

In 2014, more than four decades after Led Zeppelin’s hit “Stairway to

Heaven” was released on its first album, the members of Led Zeppelin became

the defendants in a lawsuit brought by the trustee representing the estate of

Randy Wolfe.

Wolfe was the guitarist and one of the founding members of

Spirit, the band for which Led Zeppelin opened in 1968.

The suit alleged that

“Led Zeppelin’s Jimmy Page and Robert Plant [stole] the opening guitar riff of

‘Stairway [to Heaven]’ from Spirit’s 1968 instrumental track ‘Taurus.’ ”

One

would think that such an attempt by the trustee to bring a claim of infringement

after decades of inaction should yield to the doctrine of laches—an equitable

defense that defendants may raise when a plaintiff has waited too long to bring

a claim.

Led Zeppelin has performed “Stairway to Heaven” countless times

since its release. However, a recent decision by the United States Supreme

Court defanged the laches defense in copyright infringement actions, clearing

the way for this lawsuit.

At the time the lawsuit was filed, more than forty-three years had passed

since Led Zeppelin originally released “Stairway to Heaven.” In 2014, Led

Zeppelin’s main band members (and the named defendants in the suit) were all

in their sixties or seventies: (1) founding member, lead guitarist James “Jimmy”

Patrick Page was seventy years old; (2) singer Robert Anthony Plant was sixty-

five years old; and (3) bassist John Paul Jones was sixty years old.

Undoubt-

edly, the natural passage of time from 1970 to 2014 had long since clouded the

exact and veridical memories of the events surrounding the creation of “Stair-

way to Heaven.” Over and beyond the passage of time, there is also the addi-

tional effect of cognitive aging, which is the main consideration of this Note.

This Note will argue that when the Supreme Court greatly limited laches in

the context of copyright infringement in its recent decision in Petrella v. Metro-

Goldwyn-Mayer, Inc.—almost rendering laches obsolete unless there is an ex-

traordinary circumstance—the Court entirely disregarded decades of cognitive

psychology research surrounding cognitive aging. In its ruling, the Court inad-

See Stairway to Heaven by Led Zeppelin, SONGFACTS, https://www.songfacts.com/facts/le

d-zeppelin/stairway-to-heaven [https://perma.cc/EYZ5-S65P].

Plaintiff’s Amended Complaint, supra note 6, at 2.

Amy X. Wang & Jon Blistein, All You Need to Know About Led Zeppelin’s ‘Stairway to

Heaven’ Case, ROLLING STONE (Sept. 24, 2019, 6:04 PM), https://www.rollingstone.com/mu

sic/music-news/led-zeppelin-stairway-to-heaven-appeal-retrial-889336/ [https://perma.cc/D

Q5C-SH5S].

Plaintiff’s Amended Complaint, supra note 6, at 2.

Wang & Blistein, supra note 9.

See infra Section II.A.

See infra Part II.

The ages of the band members, at the time of this writing, were calculated using publicly

available information on the internet, such as Google searches and consulting websites like

Wikipedia.

21 NEV. L.J. 1261

1264 NEVADA LAW JOURNAL [Vol. 21:3

vertently created a heightened risk of evidentiary prejudice when aging defend-

ants are brought to court for alleged copyright infringement occurring decades

prior. Specifically, this Note will argue that musicians, many of whom have

remained active late into their careers—such as Led Zeppelin’s Jimmy Page—

are disproportionately impacted by the Supreme Court’s near elimination of the

laches defense, due to natural declines in cognitive functioning and memory

processes. The types of memory most impacted—episodic memory, associative

(or source) memory, and autobiographical memories—underpin critical ques-

tions related to the creation of a musical work: Who first came up with this

riff?; When or in what order did we first hear that tune?; Did we write that

piece before or after we first heard that other band (which band)?

This Note will argue that the cognitive aging literature strongly supports

the need for laches as a viable defense in copyright infringement suits where

the infringing activity happened decades prior and the defendant’s memories

are impacted by the natural cognitive aging process. From the outset, I note that

“cognitive aging,” as used throughout this Note, is a natural part of human de-

velopment and is not indicative of any underlying illness, like dementia or Alz-

heimer’s Disease.

Cognitive aging, as described further below, unfolds over

the course of the lifespan, with some arguing that certain cognitive processes

begin to decline in our twenties and thirties, continuing until death, with more

noticeable declines as one reaches seventy years of age.

However, I note that

much of the past literature described throughout this Note conventionally refers

to “older adults” as those individuals over sixty-five years of age.

Part I will provide a brief overview of the federal scheme of copyright pro-

tection, as provided under the Copyright Act of 1976. Specifically, Part I will

lay out the elements necessary to bring a copyright infringement claim, as well

as the evidence—specifically the circumstantial evidence—used to support

such a claim. The Note will rely throughout on the Led Zeppelin case intro-

duced above for illustrative purposes. However, readers should be cautioned

from the outset that it is not my intention to provide a complete and thorough

legal commentary on the play-by-play of Led Zeppelin’s specific case. Rather,

the characters involved, some of the questions asked, and the procedures fol-

lowed at the initial trial provide the ideal backdrop for a real-life situation

See Caroline N. Harada et al., Normal Cognitive Aging, 29 CLINICS IN GERIATRIC MED.

737, 737–38 (2013) (“Although dementia and mild cognitive impairment are both common,

even those who do not experience these conditions may experience subtle cognitive changes

associated with aging.”).

See Nicole D. Anderson & Fergus I.M. Craik, 50 Years of Cognitive Aging Theory, 72, J.

GERONTOLOGY: PSYCH. SCI. 1, 1 (2017); Daniel L. Murman, The Impact of Age on Cogni-

tion, 36 SEMINARS IN HEARING 111, 113 (2015); Timothy A. Salthouse, When Does Age-

Related Cognitive Decline Begin?, 30 NEUROBIOLOGY OF AGING 507, 508 (2009).

See Donna J. LaVoie & Kethera Fogler, Associative Memory Deficits: Implications for the

Elderly Eyewitness, in THE ELDERLY EYEWITNESS IN COURT 206 n.1 (Michael P. Toglia et

al., eds. 2014) (reporting that “the American Psychological Association (1998) suggested

that 65 years and older be used to define older adults”).

21 NEV. L.J. 1261

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where cognitive aging experienced by a defendant can greatly hinder the ability

of the defendant to mount a convincing defense or provide relevant testimony.

Part II will provide a brief history of laches, specifically its origins and its

inconsistent support by various federal circuits. The Note will focus primarily

on laches in the context of copyright infringement claims. Part II will then tran-

sition the discussion of laches to include the Supreme Court’s recent decision in

Petrella, which dramatically changed the landscape and viability of the laches

defense within the copyright regime.

Part III of this Note will provide a review of relevant cognitive psychology

research and how such psychological findings shed light on the negative conse-

quences of the Petrella decision. First, Part III will provide a cursory overview

of the field of cognitive psychology and its broad contributions to the law and

legal practice. Next, Part III will embark on an in-depth discussion of cognitive

aging research, with a specific emphasis on a substantial body of literature de-

tailing the effects of aging on human memory.

Part IV will apply the psychological findings discussed in Part III to a hy-

pothetical scenario involving two fictional bands. Part IV will also apply the

psychological findings to the facts presented in Led Zeppelin’s case, with par-

ticular emphasis on the testimony delivered by Led Zeppelin’s founding mem-

ber, Jimmy Page. However, I strong emphasize that any discussion of psycho-

logical findings as they relate to the individuals mentioned in this Note should

not be construed as a clinical diagnosis or medical determination about the psy-

chological, mental, or physical state of the person mentioned.

Finally, Part V will make several recommendations for how to remedy the

Petrella-created disadvantage against older adult musicians, who, despite their

waning years, show no signs of stopping in their careers. Specifically, this Note

will propose two solutions. Under the first solution, this Note will offer an ap-

proach that should be adopted by federal district and appellate courts and/or the

Supreme Court to better define (and expand) the holding in Petrella. Second,

this Note will propose amendments that Congress should make to the Copy-

right Act.

I. COPYRIGHT LAW

any tangible medium of expression.”

The 1976 Act provides authors a bundle

of rights under Section 106—depending on the type of work for which protec-

The author is a trained experimental cognitive psychologist. However, he is not a trained

or licensed clinical psychologist qualified to diagnose cognitive impairment. The real-life

events and people mentioned throughout the Note merely provide a backdrop for the intel-

lectual exercise.

§ 1:71 (2020).

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1266 NEVADA LAW JOURNAL [Vol. 21:3

tion is sought—including the right to reproduce; prepare derivative works; dis-

tribute copies to the public; perform works publicly; display work publicly;

and, in the case of sound recordings, perform the work publicly through digital

audio transmission.

One who violates the author’s exclusive rights under Section 106 of the

against whom the copyright owner can

seek injunctions, impounding or destruction of infringing materials, and dam-

ages and profits.

A plaintiff must establish two elements in a copyright in-

fringement claim. The plaintiff must demonstrate “(1) ownership of a valid

nal.”

A plaintiff can demonstrate the copying element by showing that the in-

fringing work and the infringed work “are substantially similar in their protect-

ed elements” and by demonstrating “that the infringing party had access to the

copyrighted work.”

Access can be demonstrated in a variety of ways, and fulfilling the element

“is not onerous.”

Access can be shown by providing evidence that “the copy-

righted work was ‘sent directly to the defendant . . . or a close associate of the

defendant.’”

For example, in Cholvin v. B. & F. Music Co., the court found

that access was shown where the “plaintiffs distributed 2000 copies of sheet

music and sold more than 200,000 records, and [the] song was broadcast na-

tionwide for years.”

Said another way, “proof of access requires ‘an oppor-

tunity to view or to copy plaintiff’s work.’ ”

It must be “a reasonable possibil-

ity, not merely a bare possibility.”

In the absence of direct evidence,

circumstantial evidence can also establish access.

In one such approach, the

plaintiff can demonstrate that the defendant had access to the plaintiff’s work

through an intermediary (i.e., “a chain of events linking the [works]”).

Addi-

and attorney’s fees. See Copyright Act of 1976 § 505.

Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003) (quoting Feist Publ’ns, Inc.

v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)) (providing the elements for a claim of in-

fringement).

Id. (quoting Metcalf v. Bochco, 29 F.3d 1069, 1072 (9th Cir. 2002)).

Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1099–1100 (7th Cir.

2017).

Id. at 1100 (quoting Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)).

Id. (citing Cholvin v. B. & F. Music Co., 253 F.2d 102, 103–04 (7th Cir. 1958)).

Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016) (citing Sid and Marty Krofft Tele-

vision Prods., Inc., v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977), superseded

on other grounds by statute, 17 U.S.C. § 504(b)).

Id.

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tionally, access can also be found when the infringed work has been “so widely

disseminated that the defendant can be presumed to have seen or heard it.”

Given the importance of access, it quickly becomes clear that the testimony

from a witness regarding a song’s creation, or a band’s activities, are of critical

importance. A witness can speak to the origins and writing of the song, the cre-

ative process and contributions of different bandmates, or what business deal-

ings may have been guiding factors at the time. For example, there might be

“witnesses who might prove the existence of understandings about a license to

reproduce the copyrighted work, or who might show that the plaintiff’s work

was in fact derived from older copyrighted materials that the defendant has li-

censed.”

Additionally, an alleged infringer can use “independent creation” as a de-

fense against copyright infringement. In such an approach, a defendant must

“prove that his or her work, although substantially similar (or even identical) to

the plaintiff’s work was created without copying from that work.”

A plaintiff must bring a civil action alleging copyright infringement within

the statute of limitations prescribed by Congress. Specifically, “[n]o civil action

shall be maintained under the provision of [the Copyright Right Act of 1976]

unless it is commenced within three years after the claim accrued.”

The claim

“accrues on the date that a reasonable investigation would have put the rights

holder on notice that potentially infringing conduct has occurred.”

As Justice Breyer aptly observes in the dissent in Petrella, “[t]he 3-year

limitations period . . . may seem brief, but it is not.”

The statute of limitations

is “a rolling limitations period.”

Courts have provided that “each act of in-

fringement is regarded as a separate act which restarts the limitations period but

for the limited purpose of permitting the recovery of damages for acts that oc-

cur within the limitations period.”

This approach has been labeled the “sepa-

rate accrual” rule.

Justice Breyer highlighted the effect of this rule: “If a de-

fendant reproduces or sells an infringing work on continuing basis, a plaintiff

can sue every 3 years until the copyright term expires—which may be up to 70

years after the author’s death.”

Thus, when considering the statute of limita-

tions, one must count three years starting from each, separate infringing act. In

Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093,1100 (7th Cir. 2017) (citing

Cholvin, 253 F.2d at 103–04).

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 689 (2014) (Breyer, J., dissenting).

2 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 3:30 (2020).

Rimini St. Inc. v. Oracle Intl. Corp., No. 2:14-cv-01699-LRH-DJA, 2020 WL 5531493, at

*18 (D. Nev. Sept. 14, 2020).

Petrella, 572 U.S. at 689 (Breyer, J., dissenting).

Id.

See 6 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 20:23 (2020) [hereinafter 6 PATRY ON

Id.

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 689 (2014) (Breyer, J., dissenting).

21 NEV. L.J. 1261

1268 NEVADA LAW JOURNAL [Vol. 21:3

essence, such an approach unfortunately might create a scenario in which a

witness testifying on the stand in an infringement case might have to recall

events that occurred decades prior.

Taken together, Part I begins to highlight both the critical role that memory

plays in copyright infringement claims, as well as the challenges imposed on

memory via the separate accrual rule. Specifically, as discussed above, a de-

fendant’s ability to speak to a song’s independent creation or a lack of access to

another musical work, requires the defendant to recall, with accuracy, past

events. However, the way in which the statute of limitations is structured—

essentially, with the possibility that claims can arise again at any time over dec-

ades—can raise concerns regarding the accuracy of the memories. Unfortunate-

ly, years (if not decades) may have passed between the date of recall and the

actual creation of the memory. As is explained further below, memory veracity

can face natural deficits with age, particularly within the memory types critical

to the kind of testimony required in a copyright infringement claim.

Unfortu-

nately, such natural deficits put aging artists at a critical disadvantage in de-

fending themselves against copyright infringement claims. Such inequity

should be resolved by invoking laches. However, as discussed next in Part II,

the use of laches in copyright has been greatly limited by the Supreme Court.

II. DOCTRINE OF LACHES

A. Laches 101 and its Application to Copyright Law

The Ninth Circuit has defined laches as being “an equitable time limitation

on a party’s right to bring suit.”

It is based on the old maxim “equity aids the

vigilant, not those who sleep on their rights.”

Misty Kathryn Nall, in her re-

view on laches in copyright infringement claims, provides a concise and

straightforward characterization of laches: “[l]aches does not result from a mere

lapse of time, but from the fact that during that lapse of time, changed circum-

stances inequitably work to disadvantage or prejudice another party.”

Two

forms of prejudice have been recognized, warranting the use of laches: “eviden-

tiary and expectations-based.”

Of critical importance to this Note is the con-

cept of evidentiary-based prejudice, understood to “include such things as lost,

See infra Section III.D.

Misty Kathryn Nall, (In)Equity in Copyright Law: The Availability of Laches to Bar Cop-

yright Infringement Claims, 35 N. KY. L. REV. 325, 326 (2008) (quoting Boone v. Mech.

Specialties Co., 609 F.2d 956, 958 (9th Cir. 1979)).

Id. (quoting Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1979)).

Id. at 327 (citing Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 320

(6th Cir. 2001)).

See Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221, 1227 (9th Cir. 2012)

(citing Danjaq LLC v. Sony Corp., 263 F.3d 942, 955 (9th Cir. 2001)).

21 NEV. L.J. 1261

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stale, or degraded evidence, or witnesses whose memories have faded, or who

have died.”

The use of laches in the copyright context has not been without its legal

challenges and various limitations. A long-standing general rule within Ameri-

can jurisprudence has been “that ‘when a plaintiff brings a federal statutory

claim seeking legal relief, laches cannot bar that claim, at least where the stat-

ute contains an express limitations period within which the action is timely.’ ”

However, prior to the Supreme Court’s ruling in Petrella, discussed in depth

below, disagreements abounded as to whether laches was a viable defense in

the realm of copyright, as the Copyright Act is one such statute with an express

limitations period.

The debate as to the laches defense arises in case law as

early as 1916, when Judge Learned Hand argued that laches was permissible:

It must be obvious to every one familiar with equitable principles that it is ineq-

uitable for the owner of a copyright, with full notice of an intended infringe-

ment, to stand inactive while the proposed infringer spends large sums of money

in its exploitation, and to intervene only when his speculation has proved a suc-

cess. Delay under such circumstances allows the owner to speculate without risk

with the other’s money; he cannot possibly lose, and he may win.

Until recently, the disagreement as to the validity of the laches defense contin-

ued and resulted in a lack of consensus among the various federal circuits.

Until the Supreme Court’s Petrella decision, there was a circuit split as to

whether laches could bar both legal and equitable claims.

In short, the Ninth

Circuit permitted laches to be used both in the context of legal claims and equi-

table claims, a holding that stood in strong contrast to that of the Fourth Circuit,

which held that laches could not be used for either type of claim if brought

within the statute of limitations period set by Congress.

Additionally, the

Sixth Circuit sought a middle ground, holding that “laches could be argued re-

gardless of whether the suit was at law or in equity and was equally available in

both.”

However, the Sixth Circuit’s approach was not nearly as broad as the

Ninth Circuit’s interpretation, as it held that laches was permissible in “unusual

Id. (quoting Danjaq, 263 F.3d at 955). In Evergreen Safety Council, the court held that

evidentiary delay was created after a ten-year delay. Id. A key player in the negotiations had

since died. See id. Other critical employees involved in the negotiations “had relocated or

forgotten about components of the case (namely, important details concerning the develop-

ment of the draft manual).” Id. Business records had been destroyed. Id.

3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 12.06 (2020) [here-

inafter 3 NIMMER ON COPYRIGHT] (quoting Ivani Contracting Corp. v. City of New York, 103

F.3d 257, 259 (2d Cir. 1997)).

Id.

Nall, supra note 43, at 339.

Id. at 334, 338 (citing Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797

(4th Cir. 2001); Danjaq LLC v. Sony Corp., 263 F.3d 942, 951 (9th Cir. 2001)).

Id. at 335–36. (citing Chirco v. Crosswinds Cmtys, Inc., 474 F.3d 227, 236 (6th Cir.

2007)).

21 NEV. L.J. 1261

1270 NEVADA LAW JOURNAL [Vol. 21:3

circumstances” and “that a delay within the statute of limitations period is rea-

sonable absent compelling reasons.”

Ultimately, the Supreme Court weighed in on the disagreement in Petrella

v. Metro-Goldwyn-Mayer, Inc.

B. Supreme Court Greatly Limits Laches in the Copyright Context

In Petrella, the Court greatly curtailed the use of laches, imposing strict

limitations on its use in the context of copyright cases. Petrella involved Met-

ro-Goldwyn-Mayer, Inc.’s (“MGM”) extremely successful 1980 movie Raging

Bull, which tells the story of famed boxer Jake LaMotta.

However, years be-

fore MGM told this story, LaMotta himself joined forces with Frank Petrella to

tell audiences and fans the story of his career.

The collaboration between

LaMotta and Petrella resulted in “two screenplays, one registered in 1963, the

other in 1973, and a book, registered in 1970.”

The Petrella case involved on-

ly the 1963 screenplay.

The screenplay’s copyright registration listed Petrella

as the sole author.

The copyright rights were assigned and later acquired by

United Artists Corporation and Metro-Goldwyn-Mayer, Inc. (collectively,

“MGM”).

However, upon Frank Petrella’s death in 1981, the renewal right to the

screenplay reverted to Paula Petrella, his heir.

Importantly, Paula Petrella now

had the right to “renew the copyrights unburdened by any assignment previous-

ly made by the author.”

As the following timeline unfolds, keep in mind the length of time that is

elapsing. First, in 1991, Paula Petrella renewed the 1963 screenplay copy-

right.

Then, in 1998, Petrella first contacted MGM warning it that any deriva-

tive work, including its film Raging Bull, constituted copyright infringement.

Several years would pass before Petrella brought a civil suit against MGM.

Finally, in 2009, Petrella brought a copyright infringement lawsuit against

MGM, claiming “that MGM violated and continued to violate her copyright in

Id.at 336 (citing Chirco, 474 F.3d at 233–34 (6th Cir. 2007)).

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 663 (2014).

Id. at 673. Upon its release, the film was met with great success. The film’s starring actor,

Robert De Niro, “won a Best Actor Academy Award for his portrayal of LaMotta.” Id. At

the time of the decision, the film had continued to be marketed by MGM and had since been

converted into DVD and Blu-ray formats. Id.

Id.

Id. at 673–74.

Id. at 673.

Id. at 674.

Id.

21 NEV. L.J. 1261

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the 1963 screenplay by using, producing, and distributing Raging Bull, a work

she described as derivative of the 1963 screenplay.”

MGM contended that Petrella’s eighteen-year delay in commencing a suit

“was unreasonable and prejudicial.”

The district court sided with MGM, rea-

soning that laches barred the suit.

Of special interest to the current Note, the

district court also pointed to “evidentiary prejudice” that MGM would face,

particularly because “Frank Petrella had died and LaMotta, then aged 88, ap-

peared to have sustained a loss of memory.”

The district court further ob-

served that the boxer “ha[d] suffered myriad blows to his head as a fighter

years ago[] and []no longer recognize[d Petrella], even though he ha[d] known

her for forty years.”

The Ninth Circuit affirmed.

However, the Supreme Court overturned the Ninth Circuit.

Justice Gins-

burg, writing for the majority, argued that the statute of limitations embedded

within the copyright laws already accounted for the plaintiff’s delay, such that

“a successful plaintiff can gain retrospective relief only three years back from

the time of the suit.”

Additionally, the Court highlighted that laches originated

in the courts of equity.

Laches was typically only applied in situations where

“the Legislature has provided no fixed time limitation.”

That is, the Court

“[has] never applied laches to bar in their entirety claims for discrete wrongs

occurring within a federally prescribed limitations period.”

Thus, the Court held that laches could not “be invoked to preclude adjudi-

cation of a claim for damages brought within the three-year window. As to eq-

uitable relief, in extraordinary circumstances, laches may bar at the very

threshold the particular relief requested by the plaintiff.”

What exactly consti-

tutes extraordinary circumstances? The Court briefly offered two illustrations.

In one example, the extraordinary circumstance involved the physical destruc-

tion of an entire literary work,

and in the other example, families would be

Id.

Id. at 675.

Id.

Id. (quoting App. to Pet. For Cert., Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663,

663 (2014) (No. 12-1315)).

Id.

Id. at 675.

Id. at 688.

Id. at 666, 677.

Id. at 678.

Id.

Id. at 680.

Id. at 667–68 (emphasis added). Said another way, later in the opinion, Justice Ginsburg

provides “[i]n extraordinary circumstances, however, the consequences of a delay in com-

mencing suit may be of sufficient magnitude to warrant, at the very outset of the litigation,

curtailment of the relief equitably awardable.” Id. at 685 (emphasis added).

Id. at 686 (citing New Era Publ’ns Int’l v. Henry Holt & Co., 873 F.2d 576, 584–585 (2d

Cir. 1989)).

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1272 NEVADA LAW JOURNAL [Vol. 21:3

expelled from their homes should destruction of the work go forward.

Lower

federal courts were provided scant guidance beyond these two brief examples.

The Court addressed—and ultimately dismissed—MGM’s concerns re-

garding how inaction over time has the potential for the loss of necessary evi-

dence “needed or useful to defend against liability.”

The Court suggested that

Congress surely must have been aware of such a concern and that such a con-

cern equally bears upon both plaintiff and defendant.

One commentator has

commented elsewhere that the concern does not actually bear upon both the

plaintiff and defendant equally.

For instance, when demonstrating substantial

similarity in an infringement claim, the musical works are fixed in tangible me-

dia.

Such pieces of evidence do not suffer equally from the passage of time.

Whereas, the defendant’s memory regarding access or the creation of a song

may not be fixed in a tangible medium.

Rather, it may only be fixed in the

witness’s memory (i.e., the witness’s brain).

This Note extends arguments

made by others in the following way: those memories, critical to the defend-

ant’s case, are subject to complex aging processes, diluting the strength and ac-

curacy of those memories. I discuss this further in Part III.

The dissenting justices—Justice Breyer, joined by Chief Justice Roberts

and Justice Kennedy—were not convinced by the majority’s reasoning, and

Justice Breyer presented several hypothetical situations which underscored the

ways in which the majority’s decision would lead to undesirable consequenc-

es.

Beyond its hypotheticals, the dissenting opinion further provided addition-

al real-life cases where such a delay in plaintiff’s actions brought about “delay-

Id. at 685–86 (citing Chirco v. Crosswinds Cmtys., Inc., 474 F.3d 227 (6th Cir. 2007)).

One observer summarized the illustrations resulting in the need for “sufficient harm [to]

occur to the physical embodiments of the copyrighted expression at issue.” Daniel Sheerin,

Note, “You Never Got Me Down, Delay”: Petrella v. Metro-Goldwyn-Mayer, Inc. and the

Availability of Laches in Copyright Infringement Claims Brought Within the Statute of Limi-

tations, 24 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 851, 904 (2015). In Petrella, the ma-

jority states that the relief sought would not result in the “total destruction” of the work. Pet-

rella, 572 U.S. at 686.

Id. at 683.

Id. at 683–84.

See, e.g., Joseph A. Greene, Note, Skidmore v. Led Zeppelin: Extraordinary Circum-

stances and the Perpetual Statute of Limitations in Copyright Infringement, 69 ME. L. REV.

307, 325 (2017).

Id. at 312.

Id. at 314 (“Whether it is fixed on paper . . . or on a phonorecord . . . , a musical work

does not change over time and is defined at the moment it is written or created.”).

Id. at 325.

Id. (“Because a musical work is fixed at the time it is written—unlike the memory of a

witness—the substantial similarity determination has not been detrimentally affected due to

the lapse of time. The only evidence affected by delay is evidence critical to a defendant’s

case, thus defendants are unfairly prejudiced by the passage of time.”).

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 688–89 (2014) (Breyer, J., dissent-

ing).

21 NEV. L.J. 1261

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related inequity.”

Such examples cited in the dissent included several instanc-

es where memory had faded, such as one case in which the plaintiff waited sev-

enteen years before bringing a claim regarding “Joy to the World.”

In another

example, a “claim regarding the song ‘It’s a Man’s World,’ [was] brought 40

years after first accrual, where the plaintiff’s memory had faded and a key piece

of evidence was destroyed by fire.”

Justice Breyer was quick to discuss the

concept of “fading memories.”

Much of this Note is devoted to expounding the concept of “fading memo-

ries” and to applying scientific evidence explaining how and why memories

fade, particularly in older adults. Specifically, in instances of claims seeking

equitable relief, this Note argues that the extraordinary circumstances alluded

to by Justice Ginsburg in Petrella should include those evidentiary prejudices

created by the cognitive aging processes (specifically, older adult memory defi-

cits) described below. Additionally, this Note argues that Justice Ginsburg in-

appropriately equated the evidentiary prejudices experienced by the plaintiff

and defendant. In doing so, the majority opinion fails to sufficiently consider

how the aging process could give rise to age-related evidentiary prejudice,

greatly hindering an aging artist’s defense against a copyright infringement

suit.

III. AGING ROCK BANDS AND COGNITIVE AGING

A. Led Zeppelin as a Case Study on Aging, Memory, and Copyright

Infringement

Let us return to the Led Zeppelin copyright infringement case introduced

above. It is important from the outset to establish some early facts. First, in

1966, Randy Wolfe wrote the song “Taurus.”

Spirit released its first album

“in late 1967 or early 1968,”

which included the song “Taurus.”

In 1968,

around the same time of Spirit’s “Taurus” release, Led Zeppelin was formed

by its founding members: “Jimmy Page, Robert Plant, John Paul Jones, and

John Bonham.”

Throughout the late 1960s and the early 1970s, the bands

Spirit and Led Zeppelin crossed paths on various occasions.

100

It is undeniable

that the bands were aware of each other. During one of its early tours, Led

Id. at 690.

See id.

See id. at 690–91.

See id.

Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121–22 (9th Cir. 2018) vacated, reh’g en

banc granted, 925 F.3d 999, 2019 U.S. App. LEXIS 17271 (9th Cir. Cal., June 1, 2019).

Id. at 1122.

Id.

100

Id.

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1274 NEVADA LAW JOURNAL [Vol. 21:3

Zeppelin went as far as performing a cover of “Fresh Garbage,” another song

by Spirit.

101

Both bands also performed on the same dates for a concert and

several musical festivals.

102

However, no concrete proof existed that either band

listened to the other during any of these performances.

103

Additionally, testimo-

ny at trial revealed that the two bands conversed and “one Spirit band member

testified that Spirit had played ‘Taurus’ the night both bands performed in Den-

ver.”

104

Other evidence demonstrated that Robert Plant had attended a Spirit

concert in 1970.

105

Another Led Zeppelin member, Jimmy Page, also testified

and stated that he was the owner of the album Spirit, which contained “Tau-

rus,” “but he was unable to clarify when he obtained that copy.”

106

The iconic Led Zeppelin song “Stairway to Heaven,” written by Page and

Plant, was released on Led Zeppelin’s fourth album in 1971, approximately for-

ty-nine years ago and roughly five years after Wolfe first wrote “Taurus.”

107

The intellectual property rights in the “Taurus” song are currently held by the

Randy Craig Wolfe Trust, for which Michael Skidmore is the trustee.

108

Skid-

more brought a claim of copyright infringement against Led Zeppelin, specifi-

cally that “Stairway to Heaven” infringed “Taurus,” immediately upon the Su-

preme Court’s ruling in Petrella “that laches [was] not a defense where

109

Note that this claim was brought for-

ty-three years after Led Zeppelin released “Stairway to Heaven” in 1971.

It is important to pause and take stock of the implications of the various

dates mentioned above. First, notice how close in time everything unfolded,

such as the writing and release of “Taurus,” the writing and release of “Stair-

way to Heaven,” and the overlapping performances and various interactions be-

tween Spirit and Led Zeppelin. To pinpoint the origins of the guitar riff in

“Stairway to Heaven” requires the ability to disentangle all of these dates and

correctly locate in time specific details related to a memory event. It requires

more from the witness than merely recalling gist (or broad and general) repre-

sentations.

This Note addresses the immediate concern of how age can influence the

witnesses who need to testify in cases like Led Zeppelin’s. How can a court ex-

pect witnesses to still have their full, complete, and accurate memory forty-

three years after “Stairway to Heaven” was first realized? The expectation that

a man like Jimmy Page, a decades-long artist, is not disadvantaged in a case

101

Id.

102

Id.

103

Id.

104

Id.

105

Id.

106

Id.

107

Id.

108

Id.

109

Id.

21 NEV. L.J. 1261

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like the one described above defies everything psychologists have learned and

documented about cognitive aging.

110

B. Considering Copyright Infringement in the Shadow of Psychology and

Aging

Psychology, defined simply, is “the science of mind and behavior.”

111

Psy-

chological research is interested in advancing knowledge related to “how indi-

viduals think, feel, and make decisions.”

112

Psychologists, across various sub-

fields, have applied and extended their research to also evaluate how

psychology can shed light on the law (and legal practice). For example, social

psychologists have evaluated jury decision-making, negotiations, discrimina-

tion, morality, and punishment, to name a few.

113

Some work, though limited,

has also evaluated property law and contract law.

114

In tandem, legal scholars

have also produced work fusing psychological science with legal practice and

doctrinal legal topics, such as torts, family law, and the lawyering process,

more broadly.

115

The core of this Note is concerned with cognitive psychology, the branch

of psychology most interested in mental processes. Cognitive psychology is

concerned with cognition, or “the internal interpretation or transformation of

stored information.”

116

“Cognition occurs when you derive implications or as-

sociations from an observation, fact, or event.”

117

Cognitive psychologists study

a broad range of topics including, but not limited to, the following: perception,

emotion, memory, attention, executive processes, decision-making, motor cog-

nition, problem solving, reasoning, and language.

118

Much of published psychology research has tended to focus its attention on

college-aged students.

119

Two scholars noted that “[s]tudent samples are ex-

tremely common in psychological and cross-cultural studies due to the facility

of recruitment, lower cost of administration, and assumed lower response bi-

110

For a discussion of the application of cognitive aging findings to Jimmy Page’s testimo-

ny, see Section IV.C.

111

Psychology, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictio

nary/psychology [https://perma.cc/8GLA-84MC].

112

Pam Mueller & Janice Nadler, Social Psychology and the Law, in 1 OXFORD HANDBOOK

OF L. & ECON. 124 (Francesco Parisi ed., 2017).

113

Id. at 125.

114

Id. at 145–48.

115

See generally, e.g., JEAN R. STERNLIGHT & JENNIFER K. ROBBENNOLT, PSYCHOLOGY FOR

LAWYERS (2012) (providing a comprehensive review of psychological findings and the ap-

plications of those findings to the practice and learning of law).

116

EDWARD E. SMITH & STEPHEN M. KOSSLYN, COGNITIVE PSYCHOLOGY: MIND AND BRAIN 3

(2007).

117

Id.

118

Id. at 2–3.

119

See, e.g., Robert A. Peterson & Dwight R. Merunka, Convenience Samples of College

Students and Research Reproducibility, 67 J. BUS. RSCH. 1035, 1035 (2014).

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1276 NEVADA LAW JOURNAL [Vol. 21:3

as.”

120

However, one departure from this norm has been research focused on

older adults. Much of this Note’s discussion of cognitive psychology research

centers on findings that have focused solely on older adult samples or studies

where a sample of older adults have been compared with college-aged adults.

Specifically, much of the reviewed literature below focuses on an area within

cognitive psychology referred to as cognitive aging. Age-related decline in

cognitive abilities has been found in numerous cognitive domains, including

memory, attention, language, and visuo-spatial functioning.

121

This Note emphasizes the findings specific to the cognitive aging literature

and contends that the ways by which the aging brain interferes with one’s cog-

nitive abilities—such as memory—will directly influence a copyright infringe-

ment defendant’s ability to mount an accurate and veridical defense. The Note

focuses primarily on the defendant’s perspective, however the concerns related

to aging may also apply to witnesses other than the defendant that are also in-

volved in the litigation.

C. Episodic and Autobiographical Memories

From the outset, it is necessary to establish that psychologists have cata-

logued various types of memory under the larger cognitive umbrella of

memory.

122

For example, cognitive psychologists have distinguished between

long-term memory, short-term memory, and working memory, such that each

of these respective memory types serve different cognitive functions and have

distinct cognitive characteristics.

123

Additionally, not all types of memory age

equally.

124

Before we can delve into how memory changes with age, we must

first explore in greater detail the types of memory relevant to this Note. Specif-

ically, the next section discusses memories that are either episodic or autobio-

graphical in nature.

1. Episodic Memory

Episodic memory is concerned with “allow[ing] you to access specific

memories located at a particular point in time.”

125

Episodic memory has been

120

Paul H. P. Hanel & Katia C. Vione, Do Student Samples Provide an Accurate Estimate of

the General Public?, 11 PLOS ONE 1, 1 (2016).

121

For an extensive review and survey of the field of cognitive aging, see generally DENISE

C. PARK & NORBERT SCHWARZ, COGNITIVE AGING: A PRIMER (1st ed., 2000).

122

See generally SMITH & KOSSLYN, supra note 116, at 193, 239.

123

Id. A review of all the different memory types is well outside the focus of this Note.

124

See Wesley D. Spencer & Naftali Raz, Differential Effects of Aging on Memory for Con-

tent and Context: A Meta-Analysis, 10 PSYCH. & AGING 527, 527 (1995) (“Age-related dif-

ferences in memory are ubiquitous, and, as a rule, old age is associated with reduction in per-

formance. The magnitude of these differences, however, varies across the types of memory.”

(internal citation omitted)).

125

ALAN BADDELEY ET AL., MEMORY 137 (2d ed., 2015).

21 NEV. L.J. 1261

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referred to as “mental time travel.”

126

Episodic memory permits the recollection

of the what, the where, and the when of specific events and details in time.

127

To better understand what episodic memory is, we can distinguish it from an-

other type of memory referred to as semantic memory.

128

Semantic memory is a

form of memory that is focused on our “knowledge of the world” (i.e., factual

information).

129

A common practice among research psychologists who study episodic

memory is to separate “item memory” from “associative memory.”

130

Item

memory is broadly construed as one’s memory of single, separate units or piec-

es of information.

131

In experiments testing item memory, participants might be

asked during a test phase following the study of visual stimuli, “Do you re-

member seeing this face?” or “Was this word presented at encoding?”

132

such questions, the focus of the probe question is on single and distinct fea-

tures.

133

Item memory’s focus on singular features or objects contrasts sharply

with associative memory, where the inquiry is targeting the combinations of or

the relationship between multiple units of information.

134

Additionally, associa-

tive memory could be related to other indicia of contextual information or

source information.

135

Examples of an associative memory probe include the

following prompts: “Were these objects studied together previously?” or “Was

this word presented with this color background at study?”

136

2. Autobiographical Memory

Another type of memory—that “almost certainly depends on the episodic

and semantic memory systems” discussed above—is autobiographical

memory.

137

Autobiographical memory consists of “the memories that we hold

regarding ourselves and our interactions with the world around us.”

138

That is,

such memories are “a collection of information as well as memories particular

126

Id.

127

Id.

128

Id.

129

Id.

130

See Alan Castel & Fergus I.M. Craik, The Effects of Aging and Divided Attention on

Memory for Item and Associative Information, 18 PSYCH. & AGING 873, 873 (2003).

131

See Nancy A. Dennis & John M. McCormick-Huhn, Item and Associative Memory De-

cline in Healthy Aging, in STEVENS’ HANDBOOK OF EXPERIMENTAL PSYCHOLOGY AND

COGNITIVE NEUROSCIENCE 323, 323 (John T. Wixted ed., 4th ed. 2018).

132

See Susan R. Old & Moshe Naveh-Benjamin, Differential Effects of Age on Item and As-

sociative Measures of Memory: A Meta-Analysis, 23 PSYCH. & AGING 104, 106, 116 (2008).

133

See id.

134

See id. at 104, 116.

135

See id. at 107, 116–18.

136

See id.

137

BADDELEY ET AL., supra note 125, at 299.

138

Id. (emphasis added).

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1278 NEVADA LAW JOURNAL [Vol. 21:3

to an individual, which the individual has accumulated since his or her birth

and which allow him or her to construct a feeling of identity and continuity.”

139

Autobiographical memories have been largely divided into two main cate-

gories: episodic and semantic.

140

Episodic aspects of autobiographical memory

are rich in detail and contextual information, whereby a specific event is con-

nected to a particular space and time from the individual’s past.

141

For example,

one might vividly recall the day of his or her wedding. For such memories, an

individual calls forth associations related to “perceptual, emotional, spatial,

temporal, and contextual details that lead to a subjective experience of con-

scious memory.”

142

In contrast, semantic aspects of autobiographical memory

consist mostly of general, or generic, information.

143

Said another way, seman-

tic memories represent one’s memory for factual knowledge.

144

For example,

one might recall the names of his or her college roommates.

The distinction between episodic memory and autobiographical is in the

perspective of the memory: autobiographical memories are solely related to our

own lives.

145

For the purpose of this Note, autobiographical memories or epi-

sodic memories are both referring to the types of information we recollect from

a situation in our personal lives, such as who we experienced that memory with

and where the event took place. In the shadow of a legal proceeding, such ques-

tions (the various combinations of who, what, when, and where) will all be put

under intense scrutiny during the questioning of a witness.

D. Age-Related Declines in Autobiographical and Episodic Memory

Psychological findings have demonstrated age-related changes in both au-

tobiographical and episodic memory. Each is discussed below in turn.

139

Pascale Piolino et al., Episodic and Semantic Remote Autobiographical Memory in Age-

ing, 10 MEMORY 239, 239 (2002).

140

Id. at 239–40.

141

Id. at 240.

142

Yong-Chun Bahk & Kee-Hong Choi, The Relationship Between Autobiographical

Memory, Cognition, and Emotion in Older Adults: A Review, 25 AGING, NEUROPSYCH., &

COGNITION 874, 874 (2018) (providing a review of aging and autobiographical memory).

143

Piolino et al., supra note 139, at 240.

144

Yong-Chun Bahk & Kee-Hong Choi, supra note 142, at 874.

145

BADDELEY, ET AL., supra note 125 at 299. Some researchers have noted nuanced distinc-

tions between autobiographical memories and episodic memories. For example, neuropsy-

chologist Asaf Gilboa summarizes the two types of memories as follows:

Episodic memory involves remembering by re-experiencing and being aware of the continuity of

the experiencing self across time; autobiographical memory refers to information that directly

involves the rememberer but need not entail the same subjective awareness. Autobiographical

re-experiencing, the ability to travel back in time and re-experience an event from the past, is on-

ly one (important) aspect of autobiographical memory and is thought to be uniquely human by

this view.

Asaf Gilboa, Autobiographical and Episodic Memory—One and the Same? Evidence from

Prefrontal Activation in Neuroimaging Studies, 42 NEUROPSYCHOLOGIA 1336, 1336 (2004).

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The aging research investigating autobiographical memory has revealed

that semantic and episodic autobiographical memories do not exhibit similar

signs of decline with increased age.

146

Specifically, findings have demonstrated

that as an individual ages, his or her semantic memory, or memory for general

knowledge, can remain relatively intact.

147

Older adults have been demonstrat-

ed to “excel at the application of broader, time-independent knowledge struc-

tures acquired through a lifetime’s experience, knowledge that may give rise to

wisdom.”

148

On the other hand, older adults are much more likely to show memory de-

cline in relation to the episodic dimension of autobiographical memory.

149

one such illustration, Brian Levine and colleagues interviewed younger and

older adults about five different life periods.

150

Participants’ responses were

scored by the researchers, who categorized the participants’ provided infor-

mation as being either episodic or non-episodic information.

151

Specifically, the

researchers used the terms internal and external to distinguish between the

kinds of details provided during the interviews.

152

The internal details repre-

sented episodic re-experiencing of the memory because they were “specific to

[the] time and place” of the event.

153

Such episodic information was assigned

points depending on how rich it was, based on memories of the following: the

specificity of the time (e.g., year, season, day, etc.); place (city, building, room,

etc.); perception (visual details, body position, etc.); emotion/thoughts (emo-

tional state); and time integration, which measured the “ability to integrate the

[recalled memory] into a larger time scale by giving additional temporal con-

textual information or relating it to other life periods.”

154

The external details

were those that were non-episodic, such that the produced memory details were

merely factual or were not connected to a specific date and time.

155

The re-

searchers found that young adults performed better at producing more episodic

autobiographical details, specifically providing more details related to “happen-

ings, locations, perceptions, and thoughts and feelings specific to the event.”

156

146

Yong-Chun Bahk & Kee-Hong Choi, supra note 142, at 874.

147

See Fergus I.M. Craik, Age-related Changes in Human Memory, in COGNITIVE AGING: A

PRIMER 75, 84 (Denise Park & Norbert Schwarz, eds., 2000).

148

Brian Levine et al., Aging and Autobiographical Memory: Dissociating Episodic from

Semantic Retrieval, 17 PSYCH. & AGING 677, 686 (2002).

149

Yong-Chun Bahk & Kee-Hong Choi, supra note 142, at 874.

150

Brian Levine et al., supra note 148, at 678.

151

Id.

152

Id. at 679.

153

Id.

154

Id. at 680.

155

Id. at 679.

156

Id. at 686.

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1280 NEVADA LAW JOURNAL [Vol. 21:3

A related line of research explores associative memory deficits.

157

The need

for individuals to form and to remember associations is a ubiquitous part of life.

For example, in normal conversation and daily living, there is normally a need

(or social desire or expectation) to be able to remember face-name associations,

whether it be those of family members or colleagues. However, associative

memory deficits in older adults have been extensively documented in the cog-

nitive aging literature.

158

Unfortunately, these deficits have real-life conse-

quences for older adults, such as potentially resulting in a failure to remember

the connection between a specific pill bottle and a specific dose, further con-

nected to a specific time of day during which the pill should be ingested.

A growing body of studies has documented that older adults have greater

age-related deficits for associative memory as compared to their age-related

deficits for item memory, such that in some cases, item memory can be rela-

tively intact.

159

Such deficits for associations have been shown in older adults

across a multitude of association types, including, inter alia, faces and

names,

160

word pairs,

161

items/faces and locations,

162

spoken sentences and their

voice source,

163

as well as memory for picture pairings.

164

Taken together, evidence across both autobiographical studies and episodic

memory studies in older adults underscore age-related declines in the quality of

contextual/associative memory (those “internal” and time-dependent memories)

as compared to the relatively intact semantic/item memory. The types of

memory that are most impacted by age are those memory types most needed to

be remembered by defendants and witnesses in court: the connections between

who, what, when, and where. A person’s episodic and associative memory glue

together rich vivid details, resulting in one’s ability to describe where a person

157

See, e.g., Barbara Chalfonte & Marcia Johnson, Feature Memory and Binding in Young

and Older Adults, 24 MEMORY & COGNITION 403, 407 (1996); Moshe Naveh-Benjamin,

Adult Age Differences in Memory Performance: Tests of an Associative Deficit Hypothesis,

26 J. EXPERIMENTAL PSYCH. 1170, 1170 (2000).

158

For meta-analyses and reviews, see generally Dennis & McCormick-Huhn, supra note

131, at 323; Old & Naveh-Benjamin, supra note 132, at 104; Spencer & Raz, supra note

124, at 527.

159

See Old & Naveh-Benjamin, supra note 132, at 113; Spencer & Raz, supra note 124, at

534.

160

E.g., Moshe Naveh-Benjamin et al., The Associative Memory Deficit of Older Adults:

Further Support Using Face-Name Associations, 19 PSYCH. & AGING 541, 541 (2004); Peter

G. Rendell, Alan D, Castel, & Fergus I.M. Craik, Memory for Proper Names in Old Age: A

Disproportionate Impairment?, 58 Q. J. EXPERIMENTAL PSYCH. 54, 57 (2005).

161

E.g., Castel & Craik, supra note 130, at 874; Moshe Naveh-Benjamin et al., Adult Age

Differences in Episodic Memory: Further Support for an Associative-Deficit Hypothesis, 29

J. EXPERIMENTAL PSYCH.: LEARNING, MEMORY, & COGNITION 826, 827 (2003).

162

E.g., Christine Bastin & Martial Van Der Linden, The Effects of Aging on the Recogni-

tion of Different Types of Associations, 32 EXPERIMENTAL AGING RES. 61, 65 (2005); Chal-

fonte & Johnson, supra note 157, at 408.

163

E.g., Old & Naveh-Benjamin, supra note 132, at 107; Jon S. Simons et al., Specific- and

Partial-Source Memory: Effects of Aging, 19 PSYCH. & AGING 689, 690 (2004).

164

E.g., Naveh-Benjamin et al., supra note 161, at 827.

21 NEV. L.J. 1261

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was on a certain day, what they were doing, and with whom they were interact-

ing. However, as this section describes, this is the type of memory that is most

affected by age.

E. Why Contextual Memory Declines (The Theories)

There are several explanations for why older adults’ memory for associa-

tions and context declines markedly with age. Here, the Note focuses on expla-

nations grounded in changes in “recollection” and “familiarity” processes,

Fuzzy-Trace Theory, and brain deterioration associated with aging.

1. Recollection versus Familiarity

First, it has been suggested that age declines in associative memory are

driven by age-related shifts from what is termed “recollection processes” to a

reliance on “familiarity processes.”

165

Such an explanation is derived from a

dual-process framework for memory, where “dual-process” implies two kinds

of memory types (or systems), with each having its own characteristics.

166

Cognitive psychologist Andrew Yonelinas and his colleagues provide that

“[t]he distinction [between recollection and familiarity] is illustrated by the

common experience of recognizing a person as familiar but not being able to

recollect who the person is or where they were previously encountered.”

167

“Familiarity” is defined as memory for information that is void of specific de-

tails associated with an item’s encoding and is based on perceived memory

strength, such as in the above illustration, where one recognizes a face at the

store, but is unable to pinpoint from where they know that face.

168

Recollection,

on the other hand, is when participants recall details about where or when an

item was seen and the details associated with that encoding event.

169

Taken together, the item memory discussed above is more akin to famili-

arity, whereas associative memory is more akin to recollection.

170

Profiles in

aging for item versus associative memory largely mirror that of profiles in ag-

ing for familiarity versus recollection.

171

That is, familiarity remains relatively

intact and recollection shows age-related decline.

172

Thus, poor recollection

ability may be one underlying cause of poorer associative memory in older

adults.

165

See generally Andrew P. Yonelinas, The Nature of Recollection and Familiarity: A Re-

view of 30 Years of Research, 46 J. MEMORY & LANGUAGE 441 (2002) (reviewing the find-

ings and methods for evaluating the concepts of recollection and familiarity).

166

See id. at 442.

167

Id. at 441 (emphasis added).

168

See id. at 443, 446.

169

See id. at 446.

170

See id. at 442.

171

Id. at 471.

172

Id.

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1282 NEVADA LAW JOURNAL [Vol. 21:3

Below, this Note discusses in greater detail the aging brain and the brain’s

physical changes associated with age, but at this juncture, it is important to note

that the age-related differences in recollection and familiarity processing are

largely believed to be directly connected to brain function and deterioration.

2. Fuzzy-Trace Theory

Second, another dual-process theory, known as Fuzzy-Trace Theory, has

been proposed by psychologists Charles Brainerd and Valerie Reyna and has

garnered much attention and research.

173

In short, their theory posits that

memory representations are stored as two distinct representations: verbatim and

gist.

174

“Verbatim traces capture the surface form of events (a Coke bottle on

the breakfast table), whereas gist traces capture salient meanings (soft drink in

the kitchen).”

175

However, when memory reconstruction relies too heavily on

gist, a “false memory” can arise.

176

For example, in the example, instead of re-

membering there was a Coke, the person might remember falsely that there was

a Pepsi.

177

Said another way, “[v]erbatim traces retain the distinctive features of

an event, whereas gist traces retain the general meaning but lack perceptual de-

tails or information about specific instances of an encoding event.”

178

Several

studies have supported the notion that older adult memory, and older adults’

propensity to engage in more false memories than younger adults, is due to a

greater reliance on gist processing.

179

3. Neuroimaging and Neuroanatomy

Finally, a third and final consideration, which helps to connect the differ-

ences in memory performance described thus far, are changes that naturally oc-

cur within the aging brain, specifically to the brain matter itself. The advent of

neuroimaging technologies, such as MRI and fMRI, have afforded cognitive

neuroscientists the ability to perform in vivo examinations of brain volume in

real-time with living subjects, whereas only as recently as thirty years ago, such

173

For an extensive discussion, see generally C.J. Brainerd & V.F. Reyna, Fuzzy-Trace

Theory and False Memory, 11 CURRENT DIRECTIONS PSYCH. SCI. 164 (2002).

174

C.J. Brainerd & Valerie F. Reyna, Fuzzy-Trace Theory, False Memory, and the Law, 6

POL. INSIGHTS FROM BEHAV. & BRAIN SCI. 79, 80–81 (2019).

175

Id.

176

See id. at 81. False memories occur when people

fail[] to distinguish between perceived information and internally generated information in

memory. Sometimes, people not only confuse the real and the imagined, or actual events and

their knowledge and beliefs (such as schemas and stereotypes), but they confuse elements from

various perceived events (such as television news and a fictional novel).

Marcia K. Johnson & Carol L. Raye, False Memories and Confabulation, 2 TRENDS

COGNITIVE SCIS. 137, 137 (1998).

177

Brainerd & Reyna, supra note 174, at 81.

178

Nancy A. Dennis et al., Age-Related Differences in the Neural Correlates Mediating

False Recollection, 35 NEUROBIOLOGY AGING 395, 396 (2014).

179

Id.

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work was only possible post-mortem.

180

Overwhelmingly, such investigations

into the physical structure of the brain have revealed an array of evidence doc-

umenting an association between age and brain shrinking.

181

There is now

large-scale evidence demonstrating that as an individual ages, the brain under-

goes shrinkage in volume.

182

Increased shrinkage of the brain occurs around

forty years of age, such that an individual can experience around five percent

decline in overall brain volume every decade of their life.

183

An acceleration of

the brain mater decline occurs around age seventy.

184

A substantial body of literature has revealed an age decline in volume in

the medial temporal lobe, structural regions within the brain that are well-

documented as being associated with memory.

185

Interestingly, recent research

has found differential aging of the hippocampus and perirhinal regions of the

brain (regions subsumed by the medial temporal lobe), both of which have dis-

tinct roles in supporting associative memory and item memory (as well as fa-

miliarity and recollection).

186

The hippocampus is a brain region largely associ-

ated with item-context associations and recollection.

187

The hippocampus

exhibits heavy loss and deterioration with age, thus lending to the associative

memory deficits.

188

In contrast, intact item memory in older adults is supported

by the perirhinal cortex, which also supports familiarity.

189

In one neuroimag-

ing study, the “rhinal cortex showed familiarity-related activity that was en-

hanced by aging.”

190

Taken together, there is clear evidence that memory changes as one ages.

There are many reasons why this may happen, but the takeaway is clear: an

older witness brought to the stand will have to contend with an aging brain and

an aging memory system.

180

See B.J. Casey et al., Structural and Functional Brain Development and Its Relation to

Cognitive Development, 54 BIOLOGICAL PSYCH. 241, 243 (2000).

181

For a review of the “links between the pattern of brain aging and the pattern of cognitive

decline and stability,” see generally Naftali Raz & Karen M. Rodrigue, Differential Aging of

the Brain: Patterns, Cognitive Correlates and Modifiers, 30 NEUROSCI. BIOBEHAVIORAL R.

730, 731 (2006).

182

See Ruth Peters, Ageing and the Brain, 82 POSTGRADUATE MED. J. 84, 84 (2006).

183

Id.

184

Id.

185

See Yonelinas, supra note 165, at 472.

186

See Rachel A. Diana et al., Imaging Recollection and Familiarity in the Medial Temporal

Lobe: A Three-Component Model, 11 TRENDS COGNITIVE SCI., 379, 385 (2007).

187

Id.

188

See Raz & Rodrigue, supra note 181, at 735.

189

Diana et al., supra note 186, at 379.

190

Sander M. Daselaar et al., Effects of Healthy Aging on Hippocampal and Rhinal Memory

Functions, 16 CEREBRAL CORTEX 1771, 1778 (2006).

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1284 NEVADA LAW JOURNAL [Vol. 21:3

IV. COGNITIVE AGING APPLIED TO LACHES & COPYRIGHT LAW

A. An Aging Nation and Why Aging Matters in Copyright

The discussion of age and its implications for our society across all fields,

such as health, law, and well-being, could not be timelier. As the Census Bu-

reau aptly characterizes it, the United States is an aging nation.

191

The popula-

tion of older adults, those individuals sixty-five and older, is rapidly expanding.

Specifically, by the year 2050, the number of older adults is projected to reach

an astounding 83.7 million, which is remarkable, given that this number rough-

ly doubles the number of older adults estimated to live in the United States in

2012: 43.1 million.

192

Even if we do not project as far out as 2050, the immedi-

acy of the implications of a growing aging population becomes apparent in the

realization that by 2030, not a single Baby Boomer will be under the age of

65.

193

Said another way, one in five United States residents in 2030 will have

reached the retirement age.

194

No one is spared from aging—not even rock stars. Journalist Damon Link-

er wrote, “[j]ust about every rock legend you can think of is going to die within

the next decade or so.”

195

Linker provided a litany of rock artist names and their

ages at the time of his article’s publication in August of 2019. Some of the

more notable names included the following: Paul McCartney, age 77; Mick

Jagger, age 76; Carole King, age 77; Eric Clapton, age 74; Elton John, age 72;

Billy Joel, age 70; and Bruce Springsteen, age 69 (a few weeks shy of 70).

196

Why is it important to name all of these aging artists? Because so many of

them are still going strong professionally.

197

These artists have continued suc-

cess and staying power. Many of their songs, first created and released years

ago, remain classic hits and in demand with their fans. By continuing to com-

mercially exploit these older musical works, these aging artists potentially run

191

Jennifer M. Ortman et al., An Aging Nation: The Older Population in the United States,

U.S. Census Bureau (May 2014), https://www.census.gov/library/publications/2014/demo/p2

5-1140.html [https://perma.cc/9HJL-A38R].

192

Id.

193

Press Release, United States Census Bureau, Older People Projected to Outnumber Chil-

dren for First Time in U.S. History (Mar. 13, 2018), https://www.census.gov/newsroom/pres

s-releases/2018/cb18-41-population-projections.html [https://perma.cc/YD66-UTUB].

194

Id.

195

Damon Linker, The Coming Death of Just About Every Rock Legend, THE WEEK (Aug.

31, 2019), https://theweek.com/articles/861750/coming-death-just-about-every-rock-legend

[https://perma.cc/SN4K-VWC3].

196

Id.

197

At the initial of writing this Note, several musical artists of older age either had residen-

cies or had concert days scheduled for the Las Vegas Strip, including but not limited to: Cher

(age 74); Aerosmith (Steven Tyler is 72 years old); Reba, Brooks, & Dunn (ages 65, 65, and

67, respectively); John Fogerty (age 75); Bryan Adams (age 60); and George Strait (age 68).

The initial Note drafts were written before COVID-19, which drastically reduced live musi-

cal performances everywhere. Presumably, one day in a post-COVID, healthier, safer world,

aging artists will resume live performances in places like Las Vegas and elsewhere.

21 NEV. L.J. 1261

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the risk of unknowingly infringing another musician’s intellectual property.

How many other plaintiffs are out there, like Wolfe’s estate in the “Stairway to

Heaven” litigation, biding their time “until [they] can estimate whether litiga-

tion is worth the candle[?]”

198

Given the Petrella holding, years are permitted

to pass before artists are hauled into court over songs that were created decades

ago.

B. The Aging Artist(s), Their Copyright(s), and the Aging Brain

The questions critical to copyright infringement cases are grounded in epi-

sodic memory (specifically associative/source memory) and autobiographical

memory. These types of memory speak directly to issues of original authorship

and access to another’s work. One can easily imagine the types of questions

(especially while imagining the introductory riff in “Stairway to Heaven”) that

could arise when thinking about a song’s origins: Which singer(s) (the who)

came up with this specific riff (i.e., singer-riff association)? When and where

did that singer create that riff? If there is a competing song, when did the artist

first hear that tune? Was it before or after the artist first came up with their

song? Or the converse, when did the artist write that piece, before or after they

first heard a song from another band?

These are the types of questions that are within the domain of memory dis-

cussed at length above. These types of questions are related to the who-what-

where-when (and the combination of the aforementioned) details critical to un-

derstanding what happened years ago. Unfortunately, as this Note has estab-

lished, these are also the types of memories most impacted by natural aging

processes.

For the purpose of exploring the impact of aging on an aging artist’s life, a

simple hypothetical provides a workable starting point. Imagine it is the year

2020, and our hypothetical world has two famous bands: Band A and Band B.

Both of these bands have been around for a considerable amount of years. Band

A and Band B both arrived on to the music scene forty years ago, roughly when

the average age of each band member was thirty (all band members, in current

day, are near the average age of seventy). Two years into their respective ca-

reers, in roughly 1982, the two bands decided to go on tour together because

some industry-corporate-types saw a great commercial opportunity. Until this

point, both bands had never really interacted, and it’s not immediately apparent

that any of the respective band members are social with the other band mem-

bers. Band B opens for Band A. The tour starts in March of 1982.

Both bands are particularly ambitious. While on tour in 1982, Band B uses

its time away from the stage to write new songs. Band B writes and creates its

music privately, never in the presence of Band A. Many of the songs are written

by different band members, either by a solo individual or in collaboration with

other band members. Some songs come together painstakingly after much de-

198

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 683 (2014).

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1286 NEVADA LAW JOURNAL [Vol. 21:3

liberation. Others come more naturally, spontaneously, and with great ease and

speed. At some point in 1982, Band B releases the new album that its members

have been working on together. By 1983, with the joint tour finally over, both

bands move on to new opportunities, going their separate ways. Band A and

Band B go on for the next forty years—writing, recording, touring, on repeat—

never again crossing paths.

ment for a song Band B put on its 1982 album. Band A’s drummer accuses

Band B of putting on its 1982 record a song that oddly resembles one of Band

A’s classics, one that Band A conveniently played during the 1982 concert tour.

It comes time for the trial. The lead front person from Band B is called to the

stand and must testify about the events that took place in 1982. Remember from

the discussion of the autobiographical memories and episodic memories in Part

III, a shift occurs such that older adults have better memories for semantic in-

formation, or the factual information from their lives. However, the detailed

memory for the more nuanced information about the context—the “happenings,

locations, perceptions, and thoughts and feelings specific to the event”—are

stronger in younger adults.

199

Let’s imagine the types of questions that would need to be addressed in this

hypothetical infringement claim. The plaintiff would need to establish answers

to questions related to when and where Band B first heard (if it heard) the in-

fringed song, and by whom. A myriad of combinations of associations and con-

textual questions could easily arise in such a hypothetical. But what does the

cognitive aging literature predict might happen in such a scenario? What defi-

cits will our seventy-year-old defendant face on the witness stand? One could

make the educated guess that our seventy-year-old defendant might get tripped

up during his or her testimony.

More importantly to the defendant’s defense of independent creation, how

would he or she fare in mounting such a defense with weakened memories?

Defense counsel would need to inquire about the infringing song and attempt to

re-create the context from when the song was created. What events were hap-

pening during the creation? Where was the location? In attempting to prove ac-

cess, the defendant would need to establish a specific temporal timeline.

The various memory models and findings discussed above predict that the

aging artist might have a harder time providing the detailed contextual infor-

mation necessary to determine the exact sequence of when/where/how a specif-

ic song was created, including the exact memory for who was involved. Differ-

ences in familiarity and recollection processing would suggest that an aging

artist would have a familiarity (less-detailed, less focused memory) for the

events that occurred in a specific year, but lack the recollection to recall with

specificity the contextual details that happened during the original encoding (or

intake) of the memory of the song creation. Fuzzy Trace Theory would predict

199

Levine et al., supra note 148, at 686.

21 NEV. L.J. 1261

that our seventy-year-old defendant might only have a gist memory trace, such

that the older defendant would be prone to committing a false memory.

The types of brain deterioration that occur naturally over time suggest that

an aging artist on the stand is not necessarily trying to be coy or willfully dis-

honest and is not putting on an act to look confused, but rather might have a

harder time finding the memory that their younger counterparts may more read-

ily and easily be able to recall.

C. A Return to Led Zeppelin

The above hypothetical, though fictional, is largely grounded in reality and

inspired by the facts in Led Zeppelin’s case. During Jimmy Page’s testimony,

plaintiff’s counsel, Francis Malofiy, attempted to ask questions related to the

order of events, or questions that were context-specific, from years prior.

In one exchange, Page clearly became confused about a complex associa-

tion between several contextual factors, including whom he was with and

where, depending on when.

[Mr. Malofiy:] In that interview, when you said you were together with someone

in Bron-yr-Aur, would that be referring to Mr. Plant?

[Mr. Page:] Well, I’m not sure whether I’m meaning Bron-yr-Aur or whether

I’m meaning Headley Grange there. You know, I’ve glitched quite clearly.

THE COURT: That wasn’t his question. His question is, when you said “with

somebody else,” would that somebody else [have] been Mr. Plant? If you know.

[Mr. Page:] Umm, but it depends on the location, you see, so I don’t—I’m not

referring to that. I have to—not—I can’t really be clear about that, because

it’s—it’s a glitch as far as, you know, what I’m saying there.

200

The “glitch” potentially was related to the types of memory deficits experi-

enced by older adults in episodic and autobiographical memory. Recall, in stud-

ies on autobiographical memories, older adults recalled less “internal” details,

those details “specific to [the] time and place” of the event.

201

Those studies’

findings provide one potential explanation for why Page became confused by

the question from Malofiy related to the association between Mr. Plant and

Bron-yr-Aur or Mr. Plant and Headley Grange. The question related to an “in-

ternal” detail, the type of detail that older adults have more difficulty in re-

calling.

Several lines of questioning surrounded Page’s ownership of Spirit’s first

album, the album that contained the song “Taurus.” In one instance, Malofiy

engaged in a back-and-forth with Page in an attempt to gauge how the album

200

Jimmy Page’s Testimony at Led Zeppelin ‘Stairway to Heaven’ Trial, Pt. 2, ROLLING

STONE (Aug. 15, 2016, 3:13 PM) [hereinafter Jimmy Page Testimony Pt. 2], https://www.roll

ingstone.com/music/music-news/jimmy-pages-testimony-at-led-zeppelin-stairway-to-heaven

-trial-pt-2-248556/ [https://perma.cc/3G9L-PHN8]. The names in the testimony have been

edited for clarity.

201

See supra Section III.D.

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1288 NEVADA LAW JOURNAL [Vol. 21:3

landed in Page’s personal collection.

202

Ultimately, Page was unsure how the

album entered into his collection, and he was further unaware as to whether the

album was a gift from someone else or if instead he was the one who had per-

sonally bought the album.

203

In terms of whether it was a gift or personally ac-

quired by Page, we can reframe this memory as being an association between

acquiring the album and a person (i.e., what person was connected to a specific

action/event). Alternatively, we could reframe it in terms of the source of an

item (i.e., from whom did the item originate?). Whether we reframe this as an

association or a source problem, the memory implications are clear: older

adults struggle with this kind of memory.

According to Fuzzy-Trace Theory, older adults rely more on gist memory

traces instead of verbatim traces, such that they are more likely to recall the

generalities of an event, not the specific features.

204

Older adult reliance on gist

can be problematic in instances, then, where opposing counsel is asking for the

specific details related to a specific event. For example, Malofiy asked Page,

“Can you–can you give me a typical set list or the set list that you used in—

December 26, 1968?”

205

Here, Malofiy wanted Page to go beyond the general

gist that there were songs played, and instead produce the specific songs. Page

responded, “I can’t—I can’t give you like first number, second number, third

number, fourth number, no.”

206

He went on to say, “I can tell you—you want

me—I can give a rough approximation of a set, but it doesn’t mean to say that

it is the full set. It probably means it’s a rough approximation of maybe half a

dozen numbers.”

207

From the reading of the transcript, it would appear that

what Page is able to offer opposing counsel is only the gist memory trace.

It was also hard for Page to recall the specific number of times that he had

heard Spirit’s first album.

208

Additionally, he admitted that the distance from

the memory was proving problematic when opposing counsel asked how fre-

quently he had listened to the second and third albums.

209

For example, regard-

ing the number of times he listened to the second album, Page stated, “I don’t

know. I can’t tell. This is so far—a long, long while ago.”

210

Similarly, regard-

ing the third album, Page stated, “Let’s say eight times. I really—you know,

202

Read Jimmy Page’s Testimony at Led Zeppelin ‘Stairway to Heaven’ Trial, ROLLING

STONE (Aug. 15, 2016, 3:13 PM) [hereinafter Jimmy Page Testimony Pt. 1], https://www.roll

ingstone.com/music/music-news/read-jimmy-pages-testimony-at-led-zeppelin-stairway-to-h

eaven-trial-252538/ [https://perma.cc/7VNF-L2F4].

203

Id.

204

For a summary of the Fuzzy-Trace Theory, review notes 171–77 and accompanying text.

205

Jimmy Page Testimony Pt. 1, supra note 202 (emphasis added).

206

Id.

207

Id.

208

Id.

209

Id.

210

Id.

21 NEV. L.J. 1261

I’m speculating. I’m so sorry. I’m so sorry. It’s so difficult to remember that far

back. I used to listen to a lot of music.”

211

In another line of questioning regarding what band Led Zeppelin was open-

ing for on a specific date, Page would be required to draw upon his associative

memory to recollect band-band associations, or in an even more complex ap-

proach, band-band-date associations. For example, Page did not appear to re-

member opening for Spirit during a tour that was co-headlined by Spirit and

another band called Vanilla Fudge.

212

The specific concert in question occurred

in Denver (creating a band-band-date-location association), during which Led

Zeppelin covered one of Spirit’s songs.

213

Page responded to Malofiy, “No, I

don’t—I—you know, I really don’t have any recollection of [Spirit] being on

the—on the show. I just remember—from my memory recall, I just know that

we were on and we were supporting Vanilla Fudge, but that’s it.”

214

Here, Page

is experiencing a deficit in associative memory, as he cannot recall the connec-

tion between this specific concert and Spirit.

Finally, in a very detailed line of questioning by Peter Anderson, Led Zep-

pelin’s lead counsel, Page recounted the creation of “Stairway to Heaven.” In

doing so, Page attempted to piece together the details related to the time and

location for when and where he first started composing the music for the song:

[Anderson:] When did you start composing music for “Stairway to Heaven”?

[Page:] Well, it’s somewhere between May and August of 1970. I actually

moved houses during that period, as well, so in between being—touring and

whatever. I would say it’s between the location of Pangbourne in Berkshire or

my home in Sussex, which was Plumpton.

[Anderson:] Okay. And did you work on music for “Stairway to Heaven” at

those houses?

[Page:] Well, I was working on various ideas all the time, to be honest with you,

if I wasn’t on the—if I wasn’t on the road. It gave me—it gave me the balance

between the sort of loud music on tour and I’d sort of turn the coin and play

acoustic guitar when I wasn’t on the road, and I would be preparing for the next

album that was coming. So, yes, acoustic guitar.

[Anderson:] Okay. Thank you. Which part or parts of “Stairway to Heaven” did

you compose first?

[Page:] Well, I—I seem to remember that I had the fanfare first and the idea of

that going into a solo, which was pretty radical and no one had done something

like that before.

215

This excerpt underscores the importance of witnesses having to recall

complex associations and specific details from events in their lives. However,

for someone like Page, he needs to go decades back in an attempt to recall these

211

Id.

212

See id.

213

Id.

214

Id.

215

Jimmy Page Testimony Pt. 2, supra note 200.

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1290 NEVADA LAW JOURNAL [Vol. 21:3

episodic and autobiographical memories. Unfortunately for Page, such a hard

task is only made more difficult by the aging process.

Taken together, it is not hard to imagine that contextual questions, or ques-

tions about associations, will arise during a copyright infringement trial. If any-

thing, Led Zeppelin’s case demonstrates that the situations discussed through-

out this Note are not merely a hypothetical. Such questions could be critical to

understanding whether a song was created independently or if a timeline rea-

sonably could exist where an alleged infringer could gain access to infringed

material. As decades pass between the nexus of those songs and the infringe-

ment claim, memories will fade because of aging, unfortunately placing an in-

equitable burden on the aging artist (i.e., the defendant). It is exactly this kind

of inequity that laches has the potential to rectify.

V. PROPOSAL

Federal courts and Congress alike must take steps to protect certain parties

that will be adversely affected by the strong limitations placed on the laches de-

fense in copyright infringement suits post-Petrella. This Note has identified

one such instance in which a group requires judicial intervention and Congres-

sional help. Specifically, this Note has argued that aging musicians—older

adults over the age of sixty-five—are greatly disadvantaged when a copyright

suit is brought decades after the first alleged infringing act occurred. Such a suit

is the result of the interaction between copyright law’s statute of limitations and

separate-accrual rule.

As discussed extensively throughout Part III, scientific findings from cog-

nitive psychologists that investigated aging have added to a growing body of

literature that documents changes in memory as people age, particularly in

those individuals older than sixty-five. Specifically, the episodic nature of au-

tobiographical memories—associations between time and location and con-

text—suffer more from natural aging processes than semantic information, or

memory for facts or information void of the context where, or in which, those

memories were created.

216

Throughout this Note, and in greater detail in Part IV, I have referenced the

facts from the recent copyright infringement case involving Led Zeppelin’s

“Stairway to Heaven,” to illustrate the impact age can have on aging artist de-

fendants who will need to rely on their associative memories and episodic au-

tobiographical memories—memories susceptible to age-related differences—in

bers and future older musician defendants, need access to memories that are

216

Importantly, and encouragingly, not all memory types follow the same profile of aging;

that is, certain types of memory show greater age-related decline than others. See supra Sec-

tions III.B–E (discussing the theories that have been proposed to explain age-related memory

changes and the neuroimaging techniques that have revealed age-related changes in brain

areas related to memory). Recall, too, that such memory changes are a natural part of healthy

aging (i.e., not indicative of underlying disease).

21 NEV. L.J. 1261

critical to proving that they did not have the requisite access to the supposed

infringed work and to memories demonstrating independent creation. However,

given the current state of the statute of limitations in copyright and its reliance

on a separate-accrual rule, plaintiffs can potentially sit on a suit for several dec-

ades, if there are multiple occurrences of the same infringing activity, resulting

in devasting consequences to the memories first encoded decades prior by the

aging defendants.

217

Below, this Note discusses two potential remedies to solve the collateral

inequities and age-related evidentiary prejudice involved in the current state of

can intervene, extending the equitable defense of laches to cases similar to Led

Zeppelin’s “Stairway to Heaven” suit. Second, the Note proposes that Congress

amend the Copyright Act of 1976 in such a way that increases protection to

vulnerable groups in copyright infringement cases, specifically older adult de-

fendants in cases in which the first-known infringement occurred decades prior.

A. Judicial Intervention

Federal district judges are the first line of defense to protect older adult de-

fendants adversely affected by Petrella, as judges are the individuals in the po-

sition to interpret the semantics and the use of extraordinary circumstances in

Petrella’s holding.

Which copyright case fact patterns constitute the extraordinary circum-

stances that would warrant laches post-Petrella? Recall the majority’s language

in Petrella: “[i]n extraordinary circumstances . . . the consequences of a delay

in commencing suit may be of sufficient magnitude to warrant, at the very out-

set of the litigation, curtailment of the relief equitably awardable.”

218

However, as argued throughout this Note, the approach to laches offered in

Petrella greatly limits the defense from deserving defendants. In response to

the majority’s restrictive formulation, the Petrella dissent more generously

provided a myriad of other ways that unjust, extraordinary circumstances could

arise, warranting the application of laches.

219

This Note is sympathetic to the

dissent’s more expansive view. The types of age-related memory declines de-

scribed above, that are absolutely critical to a successful copyright infringement

defense, should amount to extraordinary circumstances, such that the age-

related evidentiary prejudice is a consequence of sufficient magnitude. This

217

See Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 682–83 (2014) (“Section

507(b)’s three-year limitations period, however, coupled to the separate-accrual

rule . . . allows a copyright owner to defer suit until she can estimate whether litigation is

worth the candle.”).

218

Id. at 685 (emphasis added). For the two illustrations presented by Justice Ginsburg, see

notes 80–81 and accompanying text.

219

Justice Breyer convincingly writes that “[l]ong delays do not automatically prove inequi-

ty, but, depending on the circumstances, they raise that possibility.” Petrella, 572 U.S. at 691

(Breyer, J., dissenting).

21 NEV. L.J. 1261

1292 NEVADA LAW JOURNAL [Vol. 21:3

Note has provided substantial scientific evidence that moves our understanding

beyond the simple, anecdotal understatement that memory fades with time. In-

stead, this Note has described an aging process, grounded in peer-reviewed sci-

entific research that demonstrates the difficulties faced by defendants over a

certain age, as compared to younger defendants. Such a consideration of age’s

toll on memory demands that laches be available to delay-related inequities

created by the age-related loss of evidence.

Thus, federal district courts, when evaluating copyright infringement

claims and interpreting Petrella, should consider the implications of the find-

ings from the cognitive aging literature on the defendants. In doing so, they

should then permit laches in instances in which aging defendants are called to

court for actions that originated decades prior.

Additionally, federal district judges should adhere to Petrella, while also

cautiously testing the limits of its holding. Specifically, does Petrella demand

an absolute bar against laches in cases in which plaintiffs seek legal remedies,

such as damages?

220

In an instance of the most extreme and rare extraordinary

circumstances, can laches be applied even when the plaintiff seeks damages?

221

Clearly the dissenting justices believed there should be such an opportunity.

222

Federal district judges should use the findings offered throughout this Note that

demonstrate the impact cognitive aging has on much needed testimony, to as-

sist in fairly recognizing that in cases seeking damages, the same age-related

evidentiary prejudices lead to inequity warranting laches. Subsequent appeals

to such an interpretation would result in the Supreme Court correcting course or

clarifying its holding.

Finally, in a similar vein and to complement the arguments above, this

Note offers one more consideration for interpreting extraordinary circumstanc-

es. This Note urges federal courts to consider the context surrounding the ag-

ing-artist-defendant prototype used throughout this Note. For many aging art-

ists, like Led Zeppelin, their sixties and beyond are the final curtain call of their

careers. It’s their last chance to connect (or reconnect) with their fans and bene-

fit from a lifetime investment.

223

However, as a natural and healthy result of the

220

Others have already questioned whether “damages may indeed be foreclosed by an ap-

propriately potent laches defense.” 3 NIMMER ON COPYRIGHT, supra note 48, § 12.06.

221

Justice Ginsburg potentially left open this possibility in writing, “[t]he circumstances

here may or may not (we need not decide) warrant limiting relief at the remedial stage, but

they are not sufficiently extraordinary to justify threshold dismissal.” Petrella, 572 U.S. at

687 (majority opinion).

222

Petrella, 572 U.S. at 689 (Breyer, J., dissenting) (providing multiple hypotheticals, in-

cluding the possibility of a key witness with knowledge of a license agreement dying, or a

dead witness was key to demonstrating “that the plaintiff’s work was in fact derived from

older copyrighted materials that the defendant has licensed”).

223

Take, for example, the opening paragraphs of this Note, which described the events sur-

rounding Led Zeppelin being awarded the 2012 Kennedy Center Honors, a lifetime achieve-

ment award. See Past Honorees, THE KENNEDY CENTER, kennedy-center.org/whats-

on/honors/ [https://perma.cc/6JBR-B6YE].

21 NEV. L.J. 1261

aging process, certain memories for the creation and recording of a song may

be “fuzzy.”

224

Further, endless intervening acts have the potential to create false

memories or to decontextualize specific memories, resulting in older adults

forgetting the exact order of events or feeling confident about the veracity of

erroneous memories.

225

Failure to grasp the specificity of certain memories ris-

es to the threshold of extraordinary circumstances, as it can threaten the image

of these artists and their lifetime investment.

In sum, cognitive aging has the ability to inflict an inequitable toll on the

ability of an aging artist to mount a convincing, complete, and veridical de-

fense. Judges should consider cognitive aging when interpreting whether to

permit the use of laches in situations in which decades have passed since the

first-alleged infringing act occurred and inevitably, the aging artist’s memories

have begun to experience the toll of cognitive aging processes.

B. Congressional Intervention

The proposed judicial intervention above is limited, as both the responsibil-

ity and the burden to remedy this issue ultimately falls on Congress to amend

the Copyright Act of 1976. Congress, in its most recent revision of the Copy-

right Act, was silent regarding laches, leaving it to the various circuits to sub-

sequently interpret it.

226

However, Congress should consider several options,

each discussed in turn below, aimed at avoiding the age-related evidentiary

prejudice described throughout this Note.

First, Congress could prevent older adults from being subjected to litiga-

tion over an alleged infringing activity that began decades prior by amending

the statute of limitations for civil actions. Currently, “[n]o civil action shall be

maintained under the provisions of this title unless it is commenced within

three years after the claim accrued.”

227

Recall that this is a “rolling limitations

period, which restarts upon each ‘separate accrual’ of a claim.”

228

Congress

could bar outright any civil action after three years following the initial in-

224

The use of fuzzy is an homage to the Fuzzy Trace Theory described in Part III. As a brief

refresher (this is a Note on memory and forgetting), the Fuzzy Trace Theory posits that older

adults rely on “gist” memories, rather than verbatim memory traces, resulting in false memo-

ries. See generally Brainerd & Reyna, supra note 173.

225

Michael A. Yassa & Zachariah M. Reagh, Competitive Trace Theory: A Role for the

Hippocampus in Contextual Interference During Retrieval, 7 FRONTIERS BEHAVIORAL

NEUROSCI. 1, 5 (2013) (“Memories are decontextualized over time by competitive interfer-

ence among these similar but not identical multiple memory traces. This simultaneously

leads to consolidation of semantic memory in the neocortex and loss of episodic details.”).

226

Petrella, 572 U.S. at 693–94 (“Nothing in the 1957 Act—or anywhere else in the text of

the copyright statute—indicates that Congress also sought to bar the operation of laches. The

227

228

Petrella, 572 U.S. at 689 (citation omitted) (“If a defendant reproduces or sells an in-

fringing work on a continuing basis, a plaintiff can sue every 3 years until the copyright term

expires.”).

21 NEV. L.J. 1261

1294 NEVADA LAW JOURNAL [Vol. 21:3

fringement.

229

This would be an extreme response. Alternatively, Congress

could simultaneously eliminate the separate-accrual rule and extend the statute

of limitations to a longer period, such as seven or ten years. Either approach

would prevent the ludicrous situation of an aging musical artist or band, such as

Led Zeppelin, from being subjected to litigation almost half a century after re-

leasing a relevant song or album.

230

This approach ensures that there is a tighter

nexus between litigation and the creation of the memories, avoiding prejudicial

delays decades later because of cognitive aging.

In a second approach, Congress could preserve the separate-accrual rule

but modify the available damages based on the length of time that has passed

since the initial infringing act. As damages currently stand, a plaintiff may seek

either actual damages and additional profits or statutory damages for the three

years following the infringing activity.

231

Consider for a moment the cash wind-

fall that Skidmore, the plaintiff in Led Zeppelin’s case, could have made from a

successful claim brought over four decades after the release of “Stairway to

Heaven.”

232

Instead, this Note proposes that Congress could make it so that the availa-

bility of actual damages and profits is removed after a three-year window, fol-

lowing the initial act of infringement. Alternatively, it could cap the ceiling for

these amounts over time, such that a longer delay results in increasingly smaller

amounts. In doing so, Congress would help avoid situations, like those similar

to the facts of Skidmore v. Led Zeppelin, in which a world-renowned musical

artist at the final lucrative “curtain call” of their career, is forced into court and

must rely on memories distorted by the natural aging process. A downside to

this approach is that it does not go nearly far enough in shielding the aging art-

ist entirely from suit, as laches would. However, this approach would mitigate

the financial ramifications, and perhaps, the possibility of larger damage

awards earlier on would motivate the plaintiff to bring a timely suit.

229

Initial infringement could be measured using either the discovery rule or the injury rule,

though the merits of which of the two should be the prevailing theory is outside the scope of

this Note. See generally 3 NIMMER ON COPYRIGHT, supra note 48, § 12.05 (providing histori-

cal background and development of the discovery rule and injury rule).

230

It is not uncommon for musical acts to re-release an album or song from decades prior.

For example, during the initial months of the COVID-19 pandemic, country star Reba

McEntire re-released her “timeless song” What If, originally released in 1997. Reba Re-

Releases “What If,” REBA (May 8, 2020), reba.com/news/2020/5/8/reba-re-releases-what-if

[ttps://perma.cc/8KVW-KG99].

231

es of willful infringement, thereby increasing the total amount of money awarded. Id.

§ 504(c)(2).

232

Plaintiff’s attorney estimated damages to be worth over $50 million. See Quentin Singer,

Led Zeppelin’s ‘Stairway to Heaven’ Potentially Worth $55 Million in Damages, FORBES

(Sept. 30, 2019, 8:49 PM), https://www.forbes.com/sites/quentinsinger/2019/09/30/led-

zeppelins-stairway-to-heaven-potentially-worth-55-million-in-damages/#748ece6dadf3

[https://perma.cc/5USW-N22N].

21 NEV. L.J. 1261

Finally, Congress could tweak the elements required to establish copyright

infringement. The modification could either be a blanket change for all civil

actions or could be specifically applied to those copyright claims that, because

of the separate-accrual rule, result from ongoing infringement over the course

of several decades. For the purpose of this proposal, this Note focuses on the

latter option. As it currently stands, “[c]opyright infringement is a strict liability

tort; as such it does not require intent as an element of the prima facie case.”

233

This strict liability approach originates from the Supreme Court, which provid-

ed in 1931 that “[i]ntention to infringe is not essential under the [Copyright Act

of 1909].”

234

The vestige of that ruling is still pervasive in copyright law today.

However, this Note argues that Congress should carve out an exception to this

guiding principle by infusing the element of intent. Congress should do so by

requiring willfulness in copyright infringement cases that have been ongoing, or

in which the first instance of infringement was decades prior.

Recently, the Ninth Circuit has carefully articulated willfulness in the con-

text of willful copyright infringement: “the plaintiff must show (1) that the de-

fendant was actually aware of the infringing activity, or (2) that the defendant’s

actions were the result of reckless disregard for, or willful blindness to, the

235

It “requires an assessment of a defendant’s state

of mind.”

236

Further, a negligence standard does not meet the requirement of

willful.

237

Congress has the opportunity to codify similar language directly into

the Copyright Act in regard to claims brought decades after the initial infring-

ing act occurred. By making a plaintiff who has waited decades to bring a claim

establish willfulness, the evidentiary imbalance previously faced by the defend-

ant due to cognitive aging is somewhat offset by the extra burden now placed

on the plaintiff. Further, this approach keeps open the possibility that such a

claim could succeed if there was truly some form of willful, or malicious intent,

by the defendant years ago.

In sum, any of the above proposals could be used by Congress to help rem-

edy the concerns facing older adult defendants in the aftermath of Petrella. The

cases resulting from Congress’ inaction to date demand new consideration of

the Copyright Act of 1976. Continued failure by Congress to address the types

of situations described herein must be met by the judicial branch’s considera-

tion of preserving and expanding the laches doctrine in copyright suits.

233

5 PATRY ON COPYRIGHT § 17:167. One copyright scholar, in his review of the role of in-

nocence in copyright law, wrote that “since 1931, a defendant’s mental state has clearly not

been relevant under U.S. copyright law to the question of liability for direct copyright in-

fringement. . . . [I]nnocent infringers are just as liable as those who infringe knowingly or

recklessly.” R. Anthony Reese, Innocent Infringement in U.S. Copyright Law: A History, 30

COLUM J.L. & ARTS 133, 133 (2007).

234

Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931).

235

Erickson Prods., Inc. v. Kast, 921 F.3d 822, 833 (9th Cir. 2019) (emphasis added).

236

Id.

237

Id.

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CONCLUSION

In conclusion, this Note has provided substantial evidence demonstrating

that older adults are faced with natural memory deficits that accompany the ag-

ing process. Led Zeppelin’s ensnarement in a copyright debacle involving

“Stairway to Heaven” highlights the inequity faced by aging artists who are ac-

cused of infringement that allegedly began occurring decades prior. Two ap-

proaches can remedy such inequity. First, federal courts can expand (or reinsti-

tute) the doctrine of laches within the realm of copyright, providing that

instances similar to the ones describes in this Note should be treated as extraor-

dinary circumstances. Second, Congress can use its legislative authority to

amend the Copyright Act. Taken together, the arguments in this Note broadly

underscore the importance of considering age as a factor when making deci-

sions on the bench or when legislating matters related to copyright infringe-

ment.