Book Report: Baby You're a Rich Man: Suing the Beatles for Fun and Profit

            Stan Soocher has written the Beatles' book that I have been waiting for. is a detailed examination of nearly all the important litigation surrounding the Beatles from the unraveling of Brian Epstein's ill‑advised early merchandising deals to their deep, complicated and litigious relationship with Allen Klein.  Don't be put off by the "legal" nature of this book.  Soocher is an entertaining writer and he has a gift for bringing out the personalities of many of the people who previously served as mere footnotes in Beatles history (like Pete Bennett, David Jacobs, Nicky Byrne, Nat Weiss, John and Lee Eastman and Walter Hofer).  As an aside, Soocher's first book They Fought the Law:  Rock Music Goes to Court is also a must-read. 

Baby You're a Rich Man:  Suing the Beatles for Fun and Profit

            Soocher goes into great detail about topics that I have always been curious about.  For example, the aforementioned merchandise debacle, the fight over Northern Songs, the IRS problems surrounding the  Bangla Desh concert, Paul McCartney's suit to end the Beatles partnership, the crazy dispute between John Lennon and Morris Levy which resulted in the Roots album, Lennon’s immigration struggle   and even the tragic battle between George Harrison and Dennis O'Brien which resulted in a St. Louis bankruptcy court punishing Harrison for his inability to attend a deposition, mere weeks before his death. 

            The real paradoxical character in the whole Beatles saga remains Allen Klein.  What would cause him to purchase the copyright to "He's So Fine" and litigate against his former management client – a clear breach of fiduciary duty?  Even more astonishing what would motivate a man who as manager for both the Beatles and the Rolling Stones (among other top artists) was privy to some of the most spectacular music industry deals of the era – to run a side business selling promo copies of his artists' records for a few extra bucks?  (There is a new Allen Klein biography by Fred Goodman which I really need to read). 

            I already thought highly of Stan Soocher as an attorney and a journalist before I read this book.  I am really pleased that he tackled this complicated topic with great skill.  I hope we can convince him to take up the challenge of writing about the Beach Boys' litigious career next. 

Battling Beatles Tribute Bands- can you copyright a wig?

I could probably spend all of my free time reading about lawsuits involving the Beatles.  Here’s the latest.  The producers of the Broadway Beatles’ tribute show Rain have just sued the producers of another Broadway tribute show, Let It Be alleging copyright infringement among other cause of action.  The complaint apparently claims that the second production contains similar musical arrangements, between song patter, background artwork and (wait for it) wigs.

The lawyer in me has to ask – how can the producers of Rain claim a copyright in any of this?  It is four guys, dressed as the Beatles, acting like the Beatles, playing Beatles’ songs.

Digging into the case. I see it goes deeper than that: the producers of both shows were working together in some sort of joint venture that went bad so the suit may be more about the contractual relationship than anything else but the copyright claims are certainly odd.

From a casual observer, it seems that the world of tribute bands in general can be fairly litigious.   I came across an interesting law review article on the subject a while back: http://tripaldredgelaw.blogspot.com/2010/08/more-on-tribute-bands.html

 It almost seems like a strange kind of sub culture, but having seen more than a handful of these groups one has to appreciate the skill and work involved in learning how to replicate the Fab 4, or any other band for that matter. Still, I don’t think there is much original expression (for copyright purposes) going on here.

It will be interesting to see how this plays out.

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.

Tomorrow Never Knows: Don Draper Does the Math

I am a huge fan of "Mad Men".  I am also a huge Beatles fan and once I discovered that the show’s  trajectory was chronological,  I have been anticipating Don Draper's discovery of the Beatles.  While we have had nice little references in the past (Don buying his daughter Sally the latest Beatles’ record, Don trying unsuccessfully to meet the Rolling Stones to discuss a television commercial) nothing prepared me for the visceral excitement of watching and hearing Don drop the needle on "Tomorrow Never Knows".  Matthew Weiner got this exactly right.

                The next day we learned that the show paid approximately $250,000.00 for the synchronization license and master use license i.e. the right to use not just the song but the Beatles' original recording on the show.  Every music lawyer knows what a coup it was for the producers to get the master use rights as well as the synchronization rights to "Tomorrow Never Knows".  I thought it would be fun to guess what the various interested parties might have made on this deal.  Understand this is pure conjecture, based on traditional record company/publishing company economics.  The Beatles’ story is not traditional. The story of how Lennon and McCartney founded a publishing company, then lost it, only to see it end up in the hands of Michael Jackson and Sony has been reported many times (apparently most explicitly in a book called "Only a Northern Song" that I am still waiting to get my hands on).  Additionally,  everyone is aware of the fact that the years of litigation between the Beatles and EMI mean that the Beatles most assuredly do not have a traditional 50/50 split of license fee income with EMI…but assuming that they did –

                Then, one has to also assume that this deal involved the traditional split of 50/50 between master use license and synchronization license.  That is not always the case but it is a good rule of thumb.  Under this scenario the publisher of the song, Sony/ATV would receive $125,000 of which $62,500 would be paid in equal shares of $31,250 to Paul McCartney and the heirs of John Lennon (as an aside it looks as if Lennon's share of the copyright to the song was renewed in 1995 in the names of Yoko Ono, Sean Lennon and Julian Lennon).

                From the master use side, typically the label EMI (the parent company of Capitol) would split the master use fee 50/50 with the artist which means that it would pocket $62,500 and pay out approximately $15,625 to each of the Fabs or their heirs.

                Again, all this is mainly illustrative and is not meant to presume to know the intricacies of Apple's finances.  However if anyone knows more details about this deal please share.  In the interim, I  can wonder what Don Draper's reaction would have been had he heard the original "Anthology" version of "Tomorrow Never Knows" and what Don Draper, the ad man would have thought about paying $250,000 to use a song in a television show.

The Fab Four v. The Fab 4

Anyone who knows of my interest in all things Beatles related will know that I was fascinated to learn of the recent law suit filed in Nevada federal court, The Fab Four Corp. v. The Fab 4, LLC. I almost predicted a lawsuit along these lines in my recent blog post about the Marty Robbins Tribute Show lawsuit.

In this case, The Fab Four, a Beatles tribute band based in Nevada, have sued the Fab 4, a Beatles tribute band in Colorado, alleging trademark infringement, claiming among other things, that “the Fab 4” is an imitation of “the Fab Four,” and false designation of origin under the Lanham Act. Interestingly, the Plaintiffs have a registered trademark for “The Fab Four The Ultimate Tribute” which was registered in January of this year, but only an application for the Fab Four mark individually.

There are two interesting aspects of this case. The first is the strength of the Plaintiff’s mark. They claim that their mark “the Fab Four” is descriptive of their services. But clearly, both bands’ entire reason for existing is to imitate the original real fabs. I wonder if that will have any impact on the case, it certainly should be considered by the defense.

The other interesting and troubling aspect of the case is that the Plaintiffs sued the Defendants in federal court in Nevada, the Plaintiffs’ home turf, apparently asserting jurisdiction because the Defendants’ website is accessible in Nevada. I have written about the worrisome development of the assertion of personal jurisdiction purely as a result of internet presence several times before, and it is a disturbing trend.

P.S. For my money, “1964, The Tribute” is the best Beatles tribute band and musically, my friends Steve Allen’s “Mystery Trip,” and Dennis Scott’s “The WannaBeatles,” both replicate the Beatles’ sound (but not their wardrob) and can’t be topped

Six Degrees of Separation

Anyone who knows me knows that I am a fan of the Beatles and I can revel for hours in all sorts of Beatles trivia and detail. Thus I was happy to learn that my former client, Bruce Sugar, recently co-produced Ringo Starr’s recent album “Y-Not”. I know that Bruce had worked on Ringo’s past albums, but it was nice to see him receive a co-producer credit. My first law partner and I worked with Bruce more than twenty (20!) years ago on what was essentially a huge collection case where an independent label with major label distribution basically stiffed about a dozen musicians, engineers, singers, and even a recording studio. It was a long hard-fought case, but I was always proud of the results we achieved for our clients. It was also an interesting introduction to the intrigue and slightly skuzzy inner workings of the record business. But I digress. I think it is amazingly cool to see Bruce Sugar rise from those humble beginnings to such an auspicious, fab assignment.