Copyright Suit Dismissed Against Beatles Company

Sid Bernstein Presents LLC v. Apple Corps Ltd. et al., No. 1:16-cv-07084 (S.D.N.Y. July 26, 2017)

The Court dismissed a copyright suit against the Beatles' Apple Corp. company, determining that Sid Bernstein Presents LLC – the company that currently owns intellectual property rights of a promoter who is credited with bringing The Beatles to the U.S. – did not have rights over footage from the band’s 1965 concert at Shea Stadium. The complaint alleged that Sid Bernstein Presents LLC retained copyrights to the footage and that The Beatles Company had infringed their copyright by allowing it to be used in Ron Howard’s “Eight Days a Week.” After reading through the contracts, the Judge determined that the language makes an admission that Sid Bernstein was not involved in the filming of the concert and was not the “author” of the footage for the purposes of copyright law.

Hard Rock's CAVERN CLUB Trademark Not Subject To Cancellation

Cavern City Tours Ltd. v. Hard Rock Cafe Int'l (USA), Inc., No. 6:12-cv-1410 (M.D. Fla. Oct. 31, 2014).

The Court held that the TTAB properly dismissed the the petition of plaintiff, who owns the mark THE CAVERN CLUB in the UK and other jurisdictions, to cancel Hard Rock Cafe's CAVERN CLUB mark in the USA.  "The Cavern Club" was a venue where the Beatles performed hundreds of times early in their career.

First, the Court found that Hard Rock did not knowingly make false statements in their application for the CAVERN CLUB mark concerning the use of the mark by other people (like plaintiff), and rejected plaintiff's argument to adopt a "willful blindness" standard.  The Court found that plaintiff failed to submit sufficient evidence to prove that Hard Rock was aware of Plaintiff's mark; further, even if Hard Rock did have knowledge of plaintiff's use of the mark, the Court found that Hard Rock had reasonable basis to believe that plaintiff did not have a superior right to use the mark in commerce.

Second, the Court found that Hard Rock's mark did not falsely suggest a connection with plaintiff in violation of section 2(a) of the Lanham Act.  "The mere fact that Plaintiff's name has a word in common with the CAVERN CLUB does not establish that Plaintiff's identity or persona is the CAVERN CLUB."  Similarly, plaintiff's lease and operation of a "new" Cavern Club venue did not establish that Plaintiff's persona or identity is the CAVERN CLUB.  Moreover, Plaintiff did not establish that the CAVERN CLUB mark points uniquely and unmistakably to Plaintiff.  To the contrary, the evidence links the CAVERN CLUB with the original venue, which was demolished in 1973; thus, it did not point uniquely to Plaintiff.  Accordingly, Hard Rock was granted summary judgment dismissing the case.

Beatles Tribute Band Trademark Registration Denied For Entertainment Services Because Specimen Did Not Show Live Performance

In re Titan Music, Inc., Serial No. 77344197 (TTAB Aug. 20, 2014).

Trademark applicant "Titan," a Beatles cover band, filed an application to register the mark FAB AGAIN for “entertainment in the nature of visual and audio performances, namely, musical band, rock group, gymnastic, dance, and ballet performances” in International Class 41.  Registration was denied, and the TTAB affirmed the denial.

The issue with registration was was the specimens provided by the applicant, which were print-outs from CDBaby and Last.fm.  The TTAB found:

Applicant’s specimens may show use of the mark on or in connection with goods (compact discs featuring music) or services (streaming of audio material via a global computer network); however, the specimens do not show use of the mark in connection with “entertainment in the nature of visual and audio performances, namely, musical band, rock group, gymnastic, dance, and ballet performances.” It is not enough for Applicant to be a provider of services; Applicant also must have used the mark to identify the identified services for which registration is sought.  [Cit. om.] As indicated above, for entertainment services such as those rendered by a musical band, the performance must be live. And while a performance can be recorded, the recording is not itself a performance.

This decision should not be read as finding that the mark FAB AGAIN, as actually used on the specimens, would not be perceived by potential purchasers as a trademark (for compact discs featuring music) or a service mark (for streaming of audio material via a global computer network). The problem is that the specimens of record fail to show use of the mark FAB AGAIN in connection with the services identified in the application, that is, “entertainment in the nature of visual and audio performances, namely, musical band, rock group, gymnastic, dance, and ballet performances.”

Suit Filed Over Beatles Movie

Ace Arts LLC v. Sony/ATV Music Publishing LLC et al.; No. 13-cv-7307 (S.D.N.Y. filed Oct. 16, 2013).

The Beatles' music publisher and record company were sued in connection with plaintiff's contract to distribute a film, The Beatles: The Lost Concert, which documents the impact the Beatles had in the USA and their first concert in Washington DC in 1964.  Plaintiff claims $100 million in damages for alleged violation of the Sherman Act, tortious interference with contract, interference with prospective economic relations, unfair competition, and violation of the N.Y. General Business Law.

Beatles Complaint Available

The complaint in Apple Corp v. Fuego Entertainment is available online. [Request a copy.]

Of particular interest is the FACTS section, which serves as a supplement to the vast library of Beatles history, and their early days at the Star Club in Germany.

Legal Counts:

• Unauthorized Fixation and Trafficking in Sound Recordings (Injunctive Relief / Damages)


• Common Law Copyright Infringement (Pre-72 Recordings) (Injunctive Relief / Damages)


• Trademark Infringement (Injunctive Relief / Damages)


• Federal Unfair Competition (Injunctive Relief / Damages)


• Common Law Unfair Competition and Trademark Infringement (Injunctive Relief / Damages)


• Federal Dilution (Injunctive Relief / Damages)


• Dilution and Injury to Business Reputation (Injunctive Relief)


• Unauthorized Publication of Name or Likeness (Injunctive Relief / Damages)

[Apple Corps Limited v. Fuego Entertainment, Inc. et al., No. 1:08-cv-20748-WMH (S.D.Fla. filed Mar. 21, 2008)]

Rolling Stones Take on the Beatles-Fuego Suit

Here.

Of note is the following: "The lawsuit states that Fuego does not have permission to sell the fifteen-song performance because at the time of the recording the Beatles had already entered into an exclusive contract with EMI prohibiting the third party recordings of their concerts." (Emphasis added.)

Query - is Rolling Stone's analysis flawed? Or do they merely need to clarify?

The EMI-Beatles contract would likely have said something like "we (EMI) have the exclusive right to exploit your sound-recordings, which are really OUR sound recordings because any recording you make -- live, or in the studio -- you assign the copyright to us and/or is a work made for hire".

So, Fuego didn't have permission to sell the performance because EMI had the right to record and exploit Beatles' live performances. That the agreement prohibited third party recordings merely goes to the fact that Fuego did not get permission to record and/or exploit the concerts from EMI. Even if the Beatles had not already entered into a recording agreement with EMI, there would still need to be authorization from someone (e.g., the Beatles). Thus, notwithstanding the contracts relevance, isn't its existence at the time of the recording dispositive as to standing -- who is the proper plaintiff -- rather than to the issue of copyright liability?

Beatles Sue Over Bootleg Tapes

Billboard drops this bomb before the holiday (Purim, Easter, Persian New Year etc.) weekend:

Apple Corps and Apple Records have just filed a federal lawsuit in Miami in an attempt to stop bootleg recordings from the Star-Club in Germany from being released to the public.

Background from OTCS here.

As of this posting, papers are not yet available online. But, you can expect OTCS to follow this one closely...

Let My People Go

Can you imagine a music group being BANNED by a nation, out of fear that they would corrupt young fans? A tipster sent this link, reporting that Israel has lifted its ban on the most corrupt band in music history: The Beatles?!

...of course, similar debates continue today. Is graphic violence and sexual content in video games contributing to "the corruption of youths"? The music industry is not immune from such manic fear; anyone purchasing an album with a "Tipper Sticker" (i.e., parental advisory label) should know that this nation, the bastion of free speech, has had its own scares of censorship.

Miami Heat: Hendrix, Now Beatles

Fuego Entertainment, whom OTCS reported plans to release Jimi Hendrix recordings without authorization from Experience Hendrix, is back in the news: the independent label plans to release 15 never-before-heard Beatles live recordings (the first to feature then new-drummer Ringo) made in 1962 at the Star Club in Hamburg, Germany.

However, there is no set release-date, based on what Billboard quotes as "legalities".

Working Class Hero

Capitol Records (EMI) announced that a new John Lennon video album will be released, in collaboration with iTunes, at Starbucks locations around the US. But buyers beware, it is not the actual album/DVD that will be sold at the coffee giant. Rather, it will be a "card", which will be redeemable on iTunes to download the music videos. Think of it as a gift-certificate, for the limited purpose of buying one item on-line.

This seems like very clever marketing, and OTCS approves. The cards will be "collectable" and feature various images of Lennon. And because it is being released during the holiday shopping bonanza, consumers are likely to grab these up along with all the other gift certificates they will already be buying (and not have to carry around all day!).

The real question is: does this create a conflict of interest with Starbucks' Hear Music record label? More poignent is the fact that Paul McCartney, Lennon's former band-mate in The Beatles, is the Hear Music label's signature artist. Notwithstanding any contract disputes with McCartney's former label (EMI), what benefit is there to joining Hear Music if your old label can sell compilations in the same limited venue, with nifty packaging that benefits both your old label, and your former opposition in a trademark dispute (Apple iTunes / Apple Records Ltd.)?