Sid Bernstein, who died in 2013 at the age of95 after a long career, was a promoter and producer of performances by many rock groups, musicians, and performers, including The Beatles. The case concerns Bernstein’s involvement in The Beatles’ historic concert at Shea Stadium.
According to the Complaint, Bernstein came up with the idea for the Shea Stadium concert and proposed it to The Beatles’ manager, Brian Epstein. In April 1965, Bernstein and Epstein executed a contract through which Epstein’s management company, Nems Enterprises, Ltd. (“Nems”), agreed to furnish “the services of THE BEATLES plus complete supporting show” for an August 15, 1965 concert at Shea Stadium.
The contract provided that Nems “shall have the sole and exclusive right to photograph, film, video-tape, and/or record the performances of THE BEATLES and the entire supporting show during this engagement and any receipts derived therefrom shall belong exclusively to Nems.” In addition, Bernstein agreed “to exclude from the premises and particularly from the immediate vicinity of the stage and the backstage areas all TV cameras, and/or photographers with motion picture cameras and/or tape recorders unless specifically authorized by Nems.”
Bernstein attended the concert on August 15, 1965 and observed the filming and recording of the performances by The Beatles and the opening acts. Bernstein also introduced Sullivan to the audience, who introduced The Beatles. Nems retained custody of the unedited film of the concert (i.e., the raw audiovisual footage, which the Complaint refers to as the “Master Tapes”). Thereafter, Nems and Sullivan’s production company, Sullivan Productions, Inc., used the raw footage to produce a movie entitled The Beatles at Shea Stadium (the “Movie”), which was broadcast nationwide on the ABC television network in January 1967.
U.S. Copyright Office records indicate that Nems acquired all right, title, and interest, including copyright, in the Movie pursuant to an agreement made in August 1965 between Nems and Sullivan Productions. Those records also indicate that in 1988, Subafilms registered its claim of ownership of the copyrights in the Movie, which it obtained by assignment from the named author, “Nems Enterprises Ltd. as employer for hire.”
In or about 1995, Apple Corps and Subafilms (defendants) arranged for and authorized the television broadcast of a documentary series on The Beatles’ career called The Beatles Anthology (“Anthology”), which aired in November 1995. In 1995 and 1996, Defendants arranged for and authorized the release, distribution, offer for sale, and sale of the Anthology series on VHS and Laserdisc, as well as Anthology CDs.
In 2003, Defendants arranged for the release on DVD. The Anthology DVDs, Laserdiscs, and VHS cassettes included audiovisual footage from the “Master Tapes” and/or the Movie, and the Anthology CDs included the audio recording of the song “Everybody’s Trying To Be My Baby.” Defendants have also continued to distribute and sell the Anthology products, including via the beatles.com website, Amazon, and eBay.
Around 2010, Defendants provided a copy of footage from the “Master Tapes” and/or the Movie to be used in a film entitled The Last Play at Shea. Defendants also authorized and began offering streaming excerpts from the “Master Tapes” and/or the Movie from the beatles.com website over the Internet.
In July 2016, Apple Corps announced the release of the film Eight Days a Week: The Touring Years. That same month, Bernstein submitted an application to register its ownership of copyrights in the “Master Tapes” of the 1965 concert. The Copyright Office refused Plaintiffs application because, inter alia, Plaintiffs claim was adverse to Subafilms’ 1988 registration in the Movie.
Plaintiff’s claims rely on two related but distinct theories. First, Plaintiff argues that Bernstein was a copyright author “by reason of being the producer of and having made creative contributions to the 1965 Shea Stadium performance.” Second, Plaintiff argues that Bernstein was “the employer for hire of the Beatles and the opening acts, who performed at his instance and expense.” Plaintiff seeks rights regarding various “infringing derivative works” including: (1) The Beatles Anthology; (2) The Last Play at Shea; and (3) Eight Days a Week.
Bernstein entered into a contract with The Beatles’ management company, Nems, on April 26, 1965, approximately four months before the Shea Stadium concert. That contract reserves no rights whatsoever for Bernstein in any filming or recording of the concert. To the contrary, the contract granted Nems “the sole and exclusive right to photograph, film, video-tape, and/or record the performances of THE BEATLES and the entire supporting show during this engagement and any receipts derived therefrom shall belong exclusively to” Nems.
Furthermore, the contract required Bernstein to “exclude … all TV cameras, and/or photographers with motion picture cameras and/or tape recorders unless specifically authorized by Nems.” Thus, the sole contract between Bernstein and N ems reserved filming rights and sales for Nems and expressly excluded Bernstein from any involvement.
An August 1965 contract between Nems and Sullivan Productions shows that Sullivan Productions, as an independent contractor, would provide to Nems a “one-hour television film…, consisting of complete coverage of the performance of the Beatles at their Shea Stadium Concert…”. The agreement also expressly provided that Nems “shall be copyright proprietor of the Film,” that the Film and “all rights therein” were Nems’s “sole property,” and that Nems retained the right “to exploit the Film in any manner, in any media throughout the world in perpetuity.” As such, both the Nems-Bernstein and Nems-Sullivan contracts are plainly consistent with the notion that Nems exclusively owned all copyrights in the filming of the concert.
Nevertheless, Plaintiff tried to avoid the effect of these agreements by arguing that they relate only to the live filming of the concert, but “do not negate” Bernstein’s rights to the raw footage of the concert – the so-called “Master Tapes.” This reading of the Nems-Bernstein Contract strains credulity and is totally inconsistent with the conduct of the relevant parties in the decades following.
By zeroing in on Bernstein’s contributions to the filming of the concert rather than his efforts as a producer and promoter of the event, it is obvious that he is not an “author” of any fixed works. The Complaint alleges that Bernstein came up with the idea of the concert and was heavily involved in the logistics of setting it up. At the same time, the Complaint acknowledges that Nems and Sullivan Productions filmed the concert and produced The Beatles at Shea Stadium Movie, while Bernstein never even had access to the footage. Put simply, this sort of conduct does not make Bernstein an “author” of any copyrightable works. As such, all of Bernstein’s authorship claims fail.