Company files lawsuit over The Beatles' use of Shea Stadium footage - UPDATE: Beatles win*

As most Beatles fans know, the late Sid Bernstein promoted The Beatles' appearance at Shea Stadium in 1965.

Today, Sid Bernstein Presents Inc. filed a federal lawsuit claiming an ownership interest in the film of that concert.

Although it doesn't explicitly seek a temporary injunction or restraining order to prevent the upcoming planned theatrical showings of the Shea film, the lawsuit does not exactly bode well for any commercial uses of the film in the immediate future. At the very least, it creates a potential legal hurdle that may be have to be cleared, depending on how quickly the case can be resolved.

The lawsuit, with Apple Corps and Subafilms named as defendants, alleges that Bernstein -- referred to as "Sid" throughout the complaint -- "intended that his contributions to the (Shea Stadium) performance would be merged with the contemporaneous film and audio recording of the performance being made by Mr. Sullivan’s crew as inseparable and interdependent parts of a unitary whole in the form of the master tapes, and thereby intended to be a joint author of the copyrightable work embodied in the master tapes.”

Note the word “intended” in that sentence. That’s a critical word in this case, although even if SBP succeeds in claiming that was actually Bernstein’s intent, the company would still have to prove that he had, or has, a legitimate claim of copyright ownership.

And of course all of this is happening on the eve of the planned theatrical showings of the Shea film, and on the eve of the Hulu broadcast of the “Eight Days A Week” film, which includes a lot of Shea footage.

The lawsuit, which has yet to generate a response from Apple and Subafilms, states that Bernstein, who died in 2013 at the age of 95, was “a well-known and highly successful promoter and producer of performances by many rock groups, musicians and performers, including The Beatles, The Rolling Stones, The Rascals, Herman’s Hermits, Tony Bennett, Ella Fitzgerald, James Brown and others” – an assertion with which few people would argue.

“Sid is best known as ‘The Man Who Brought The Beatles to America” in 1964,’ ” the lawsuit states. “Sid had heard about the British rock group, which at the time was not well-known in America. Sid contacted The Beatles’ manager, Brian Epstein, and proposed that he, Sid, would promote and put on performances by the Beatles in America. Mr. Epstein agreed to Sid’s proposal. Sid was influential in getting the Beatles booked for their historic appearance in America on the highly popular ‘Ed Sullivan Show’ and produced their performance at Carnegie Hall, both of which occurred in February 1964.”

According to the complaint, after the successful performances by The Beatles on “The Ed Sullivan Show” and at Carnegie Hall, Bernstein had the idea of putting on a performance by The Beatles at Shea Stadium.

“No rock group had ever performed in such a large venue,” the lawsuit states. “Sid proposed his idea to Mr. Epstein, and in April 1965 they entered into a contract whereby Sid hired the Beatles and a complete supporting show to perform at a concert to be presented by Sid at Shea Stadium on August 15, 1965. The contract provided that Sid would guarantee paying the Beatles a minimum fee regardless of how many tickets were sold, plus a percentage of the gross box-office receipts over a stipulated amount. The contract also provided that Mr. Epstein’s company, NEMS Enterprises, Ltd. had the right to film and record the performances of The Beatles and supporting acts during the concert.”

The complaint goes on to say that “Sid set to work raising the money to mount the performance, which included, among other things, renting Shea Stadium, building a stage, hiring security, hiring the opening acts, and paying The Beatles their minimum performance fee. Sid told people that he was planning a performance by The Beatles at Shea Stadium and the word spread like wildfire. Thousands of envelopes containing money and requests for tickets were sent to Sid’s post office box in New York. At the end of the day, Sid had received more than enough money from New Yorkers to sell out every one of the approximately 55,000 seats in Shea Stadium.”

The lawsuit alleges that after Bernstein “arranged for Ed Sullivan to introduce the Beatles” at Shea Stadium, Epstein arranged for Sullivan’s camera crew to film the performance. “In addition to having the original idea for -- and proposing that he present The Beatles’ performance at Shea Stadium -- Sid planned, managed and paid for virtually every aspect of the production, including deciding on, booking, and paying to rent to, Shea Stadium; paying The Beatles and other artists to perform; arranging and paying for security and insurance; deciding on the location, and placement of the stage within Shea Stadium; determining the placement, orientation and arrangement of the band members and microphones; deciding on and coordinating the introduction of the Beatles by Ed Sullivan; deciding on and arranging for the Beatles to enter Shea Stadium by helicopter; deciding on and coordinating the Beatles’ entrance to the stage from the dugout and their exit from the stadium by limousine; and paying for the helicopter and limousine.”

The lawsuit even credits Bernstein for the design of the tickets that were sold.

“Sid attended the Shea performance on August 15, 1965, to supervise the production,” the lawsuit alleges. “Sid observed the filming and recording of the entire production, i.e., the creation of the “master tapes” of the production, including the performances by The Beatles and the opening acts.” It alleges that “Epstein’s involvement in the performance was limited to supplying the services of The Beatles and the opening acts … and hiring Ed Sullivan’s crew to film and audio-record the performance.”

According to the lawsuit, NEMS “obtained custody” of the master tapes of the show at some point after the performance “and without seeking Sid’s consent, Mr. Epstein/NEMS used the film of the performance to produce a movie entitled “The Beatles at Shea Stadium” which was broadcast on the ABC television network in January 1967. In 1988, Subafilms received a registration for its claim of ownership of the copyrights in the film.

In 1995, Apple Corps and Subafilms arranged for and authorized the television broadcast of the Shea footage as part of “The Beatles Anthology,” later sold on VHS and laserdisc and DVD. As part of the “Anthology” CD series, the audio recording of the previously unheard Shea performance of “Everybody’s Trying To Be My Baby” was officially released for the first time.

Here’s where it gets interesting.

According to the lawsuit, Sid Bernstein Presents learned only last year, in 2015, that Subafilms had registered a copyright claim in the Shea film and that Subafilms claimed to own the copyrights in the film through assignment from NEMS.

What’s more, Sid Bernstein Presents claims that it was only this year that Sid Bernstein Presents “learned that the television broadcast of the ‘Anthology’ series -- as well as the ‘Anthology’ DVDs, laserdiscs and VHS cassettes -- included footage from the 1965 Shea Stadium performance,” and that it was only this year that they realized the ‘Anthology’ CDs included the audio recording of ‘Everybody’s Trying To Be My Baby’ at Shea!

The lawsuit notes that on July 29 of this year, Apple Corps announced in a full-page ad in The New York Times that after the upcoming showings of the “Eight Days a Week” film, theater-goers will see an “exclusive, in-theatres-only, 30-minute film of the concert of the 1965 Beatles' performance at Shea Stadium, digitally restored with remastered sound.”

Sid Bernstein Presents alleges that at around the same time, in July of this year, it “submitted an application to register its ownership of copyrights in the master tapes of the 1965 Shea Stadium performance, based on the assignment of Sid Bernstein’s rights therein as the dominant and hence sole author of the copyrightable work embodied therein.”

The lawsuit claims the Copyright Office indicated that this claim of copyright ownership in the master tapes is “adverse to the 1988 registration of copyright by Subafilms” in the film, and it denied the request for copyright registration.

Although the Copyright Office has refused SBP's request for copyright registration, Sid Bernstein Presents is now asserting a claim against Apple for copyright infringement and bringing suit.

Sid Bernstein Presents alleges that it proposed to Apple “that the parties explore a possible resolution of these issues without engaging in litigation,” and that “Apple disputed SBP’s position, asserting that it owned all copyrights in the master tapes and the movie, and declined SBP’s request that the parties attempt to resolve the issues amicably.”

The lawsuit makes several request for relief, the most notable being a finding that Apple “infringed Sid Bernstein’s copyrights in the master tapes and/or the movie by broadcasting footage of the 1965 Shea Stadium performance from the master tapes and/or the movie on television in the ‘Anthology’ series in 1995” and by “offering for sale, reproduction and distribution” that same footage as part of the “Anthology” DVDs, laserdiscs and VHS cassettes, and in the case of “Everybody’s Trying To Be My Baby,” the sale of CDs.

Most ominously, the lawsuit asserts that any future reproduction, distribution and showing by Apple Corps of the remastered film “will infringe on Sid Bernstein Presents’ copyrights” – a claim that obviously speaks to the upcoming planned showings of the film in connection with “Eight Days A Week.”

In the event the court determines that Sid Bernstein is, in fact, “a joint author of the copyrightable work embodied in the master tapes,” SBP asks the court to “permanently enjoin the defendants from any such copyright infringements and asks for the “impounding of and transfer” to Sid Bernstein Presents “the master tapes, the movie and the remastered film and any portions thereof, and all copies or derivative works thereof, made or used by defendants or their distributors or agents,” as well as “all plates, masters, tapes, film negatives or other articles by means of which such copies may be reproduced; and all records documenting the manufacture, sale or receipt of things involved in all infringements by the defendants.”

Of course, anyone who can afford a filing fee can file a lawsuit, and it remains to be seen whether any of these claims will hold up in court.

Stay tuned.

 

Since 90's Anthology included and used footage from "Shea" would Sid not have had a Legal case then, and Now?

Just curious on the previous use, and worldwide Distribution, Sale of the Broadcast rights to ABC, VHS/Laserdisc/DVD formats prior to 2013 death of Sid Bernstein.

 

Couldn't Sid and Brian just work something out now, in the afterlife?

 

That's why that aspect of the case is so interesting.

How is it that Sid Bernstein Productions only recently became aware of the heavily promoted "Anthology" and its use of the Shea footage? The footage was used in almost every promo that ABC ran, and an extended excerpt was a key element of Part 2 of the broadcast. The "Anthology" was promoted like no other television special before or since. I seem to recall that Sid did some interviews around the time of the "Anthology" to talk about his role in bringing The Beatles to America and, a year later, to Shea Stadium!

 

How ridiculous is this.....once again, the allmighty dollar rears it's ugly, obnoxious head. You know what..???With all due respect, Sid did NOT bring The Beatles to America. I give that credit to Brian Epstein. Okay, all well and good that he was a big part of arranging the Shea Stadium concert...so what now? Does that footage go back into hiding? Amazing. never any consideration for the true champions in Beatle lore: the fans. The more I read that article, the sicker I got.

 

I think Sid does deserve a lot of credit for his role in both 1964 and 1965. By all accounts, he was a true gentleman -- soft spoken, self-effacing, true to his word in all of his business dealings, and a genuine fan of The Beatles and their music.

Keep in mind that he has been dead for a few years, and so this lawsuit is brought by the corporation that bears his name, not by Sid himself.

 

NEWS UPDATE:

Today, "Arnold Grove Presents Inc." has filed a lawsuit against "Sid Bernstein Presents"(SBP) for filing a lawsuit against "The Beatles Presents" (TBP). Arnold Grove Presents Inc. (AGPI) believes that Arnold Grove (AG) has the sole right to sue the "The Beatles" (TB). He won this right directly from John Lennon (JL) in 1973, when the honorable Arnold Grove traded John Lennon a copy of the rare LP "Kum Back" (mint condition by the way!!) for the singular right to sue the Beatles. AGPI even has this exchange written and signed by said John Lennon, although his signature leaves a lot to be desired. So in legal terms, AGPI is telling SBP to roll over. "The Beatles Presents" has made no comment on this situation, because they really don't know where to start. But they promise that a forthcoming comment will be "coming soon"....

 

If this stops the Shea film being shown before Eight Days a Week then I'm personally digging Sid up and punching him squarely on what used to be his nose. In some ways I'm looking forward to Shea more than the main feature.

 

I totally get that. Sid is gone and this, basically, has nothing to do with him. It doesn't change matters any. This is nothing more than a money making opportunity which was apparently missed out on during Anthology. Beatle fans have been waiting "forever" for restored Shea Stadium footage. Just once it would be nice if the wallet was thrown to the side for the sake of historical value.

 

Re: your second sentence....you're not alone.

 

"You never give me your money
You only give me your funny paper
And in the middle of negotiations
You break down"

Unfortunately, I already gave them my money,
Someone then filed a funny paper,
and if the showing does not include Shea,
I may break down.....

 

Good PR!

 

Who cares ??? Certainly not the Beatles or they would have released it by now.

 

Hahahahaha!!

 

I would discount this whole thing if I hadn't bought a ticket to see the Washington D.C. concert in a theater in 2012 and had legal action squash that event.

It would be quite the drag if Shea is pulled from this event.

 

I don't think it will be. As I said, there's not even a request for the judge to issue an injunction to block future showings at least until the case is resolved - and that surprised me. In these types of cases, that sort of request is almost standard operating procedure.

 

It easily could be pulled. Apple could decide that showing Shea would give the plaintiff a claim that receipts from these cinematic showings would be part of the damages. Also eliminating the new damages could mean that the claim could be thrown out on Statute of Limitations grounds as there was no injury within last 3 years (unless use of some footage in 8 days a week video on 1 plus counts).

It actually could also cause them to either cancel 8 Days a Week film release or delay to re-edit without Shea footage (depending on how essential it is to doc).

Bright side: if it is all cancelled at least we got the Hollywood Bowl release out of it.

 

As posted elsewhere:

Where's Ron Decline when you need him"

 

They will just have to substitute it with The Rutles at Che Stadium instead

EDIT: Oh, Arnies's just reminded me that Ron Decline will also sue...

 

But we don't really need the Shea footage do we, after all we have an eyewitness account from Whoopi!

 

I hope this doesn't prevent the 30 minute Shea Stadium concert from being included in the DVD/Blu-Ray release.

Bottom line, it's about money, and best case, they'll lose the suit or get their cut, and we'll see a little blurb at the bottom of the jacket to the effect "Shea Stadium concert footage licensed under special agreement with Sid Bernstein Presents Inc. "

 

That's possible, but don't forget that ongoing "damages" are also being realized through the continual sale of "Anthology" DVDs, CDs and downloads -- and the plaintiff not only isn't seeking to block the upcoming exhibition of the Shea film, it also isn't seeking to block the ongoing sales of the Shea material as part of the "Anthology."

I suspect the reason for this is that Sid Bernstein Presents knows that an injunction blocking future commercial use of the Shea material, if it was to be granted, would expose the plaintiff to increased risk from a counter-lawsuit from Apple seeking damages for lost revenue related to the "Eight Days A Week" and "Anthology" projects.

 

"Sue Me, Sue You Blues"

 

The suit is definitely timed to the release of the movie, in order to try and get a piece of the ticket sales from the movie, since Shea has been included with the screenings.

The thing I'm worried about is that there will be a last-minute pull of Shea from the screenings until the suit is settled or decided.

Why the hell can't they just sue each other and keep themselves busy? All money. From meeting Sid Bernstein, I think he would be honored to be a part of the movie having Shea being shown! Hell, he'd volunteer to give talks before screenings in NY! He loved The Beatles and did a lot of Beatles events.

 

They don't want it enjoined because they want more damages to collect.

But certainly I have no idea what will happen, just speculating as to factors being considered by defendants attorneys as they plan what to do.