Tuesday, July 2, 2013

Ace Arts LLC v. Sony/ATV and Apple Corps: The Beatles, Synchronization Licenses and Misuse of Coprights

For my fellow sufferers of Beatlemania, here's the scoop on the latest Beatles lawsuit.  Fans may remember last year that there were some advertisements for an exclusive in-theater documentary called The Beatles: the Lost Concert which focused on  the Beatles’ February 11, 1964 concert at the Washington D.C. coliseum, their  first concert in America.  Everyone has seen the film, it's notable not only for its kinetic energy but for the fact that the band had to stop after every few songs and rotate their equipment so that fans on all sides of the arena could see them.

            The film was shown on closed circuit television in 1964 and has been  available on a variety of formats from 8-millimeter film to laser disc; it was released as part of Apple's First U.S. Visit documentary in the 1980s and was featured in The Beatles Anthology. It seems from reading the reports that the original film was never registered for copyright and may have become part of the public domain.  There were apparently several master copies of the film one of which Apple purchased in 1995.  (Another copy was sold at auction in 2005).

            In 2009 a copy of the film was acquired by a company associated with the Plaintiff, Ace Arts LLC which made plans to add some documentary footage and interviews to the concert film and then distribute it for exclusive theatrical release.   The company went to Sony /ATV, the company which controls the majority of the Beatles' music publishing rights, to acquire synchronization licenses for the right to use the Beatles' songs in the film.  A synchronization license is required anytime one wishes to use a copyrighted musical composition in "synchronization" with a visual image.  It is not clear from reading the complaint whether the distributor successfully negotiated a synchronization license with Sony /ATV or simply agreed upon terms.

            Here's where it gets strange.  It appears that Apple then decided that it was going to release its own version of the concert on (the other Apple's) iTunes and somehow negotiated an exclusive  synchronization license with Sony ATV for 8 of the 12 songs in the film. As the complaint points out, the issuance of any kind of exclusive synchronization license is unusual.

            Sony/ ATV then apparently filed suit in England to enjoin the film's release and sent cease and desist letters to each of the theaters  in this country that were planning to exhibit the film.

            Ace Arts the distributor has now sued Sony/ ATV and Apple Corps in California federal court for antitrust -alleging a conspiracy between the two companies to block distribution of the film, as well as tortuous interference with its contracts and unfair competition.  It is also suing on the very interesting ground of misuse of copyrights.  There is a lot going on here – the most interesting elements concern the issuance of the synchronization licenses.  Did Sony /ATV issue the licenses and then renege on them?  Was this based on strong-arming from Apple?  Did Michael Jackson have anything to do with it?

            If the lawsuit goes forward it may shed light on the very interesting relationship between Apple and Sony ATV which controls the one aspect of the Beatles legacy that is outside of their grasp, their music publishing rights.  It might also provide information on the economics of synchronization licenses on this level and finally, it might shed light on how such an important historical film could have become part of the public domain.  This will be a very interesting lawsuit to watch.

1 comment:

Hank said...

Another interesting aspect of this case is that while there have been recent instances of sound musical recordings entering the public domain in the UK and EU while remaining under copyright in the US (due to shorter UK/EU copyright terms) in this instance, it would appear that the opposite is true--as far as I can tell, for several reasons, this videotape seems to fall within UK copyright protection, regardless of what registration rules were in place in the US back in 1964.