On the verge of last month’s release of Eight Days a Week – The Touring Years, a Ron Howard-directed film showing live performances of The Beatles, a surprising lawsuit was filed by the company assigned Sid Bernstein’s intellectual property.
Bernstein was a well known rock promoter in the 1960s, credited with bringing The Beatles to the United States, who passed away at the age of 95 in 2013. His lawsuit focused on the role he enjoyed for The Beatles’ 1965 performance at Shea Stadium, which has been featured on ABC in 1967, in the 1995 television docuseries, The Beatles Anthology, a 2010 Billy Joel concert film called The Last Play at Shea, and last and not least, as supplemental material following screenings of Eight Days a Week. The footage is also streamed at the Beatles.com website.
After five decades, Sid Bernstein Presents is now claiming rights to both the footage from that Shea Stadium performance, and despite seeing the Copyright Office reject its copyright registration application in July, asserts infringement on the part of two Beatles-related companies, Apple Corps Limited and Subafilms Limited.
On Wednesday, defendants filed a motion to dismiss the complaint that rejects the “frivolous” notion that Bernstein is author and copyright owner of Shea Stadium concert film.
The plaintiff alleges that Bernstein proposed the idea for the concert to Beatles’ manager Brian Epstein, that the contract provided that Epstein’s company had the right to film and record the performances, but that Bernstein “planned, managed and paid for virtually every aspect of the production.”
Epstein’s involvement was allegedly “limited to supplying the services of the Beatles and the opening acts at the concert for Sid, and hiring Ed Sullivan’s crew to film and audiorecord the performance.”
This might be true, but Apple Corps in its dismissal bid emphasizes who had contracted the “sole and exclusive right” to film – its predecessor, Nems Enterprises, controlled at the time by Epstein. The defendant picks up on the acknowledgement that Bernstein just “observed the filming and recording.”
“Plaintiff admits that Bernstein had no control over or input into the filming of the concert or in the production of the resulting film, The Beatles at Shea Stadium,” states a court brief from Beatles attorneys Paul LiCalsi and Michael Kolcun. “Finally, Plaintiff admits that Bernstein, throughout the nearly fifty years after the Shea Stadium concert until his death in 2013, never asserted any claim of authorship or copyright ownership in the film of the concert – which first aired nationally in 1967 – despite the consistent, notorious, and exclusive claims of ownership by Nems, Apple, and Subafilms, all of which excluded Bernstein from any receipts from their various exploitations of the film.”
Subafilms obtained a copyright registration in 1988.
Nearly three decades later, last July, Sid Bernstein Presents submitted its own application for the master tapes. That was refused, according to plaintiff’s complaint, because it was “adverse” to the ’88 registration and because Sid Bernstein Presents didn’t have direct access to the original master tapes.
The Copyright Office rejection isn’t a bar to filing a lawsuit, but the plaintiff must show it owns more than an unauthorized derivative. The Bernstein company is coming forward with the theory that the promoter “made independent copyrightable contributions to the work embodied in the Master Tapes” and that “Bernstein was the employer for hire of the Beatles and the opening acts, who performed at his instance and expense, and the copyrightable contributions of the Beatles and the opening acts vested in him.”
The defendants argue this is a “red herring,” that even if the judge were to ignore the contract at hand, the footage isn’t a work-for-hire.
“Plaintiff’s attempt to conflate the event of the concert with the filming of the concert is unavailing,” argues LiCalsi and Kolcun, who goes on to use plaintiff’s own allegations to undercut the proposition that the footage came at Bernstein’s instance and expense.
Here’s the full memorandum, which also addresses how Bernstein’s supposed “creative contributions” don’t result in authorship and copyright ownership with a nod to the infamous copyright case over Innocence of Muslims as well as the 2nd Circuit’s version.