From: "Allan Kozinn" <allank@idt.net>
Newsgroups: rec.music.beatles.moderated, rec.music.beatles
Subject: Re: Life imitates art? (Hamburg tapes)
Date: 24 Aug 1998 22:03:11 GMT

I didn't follow the details of the case but I assume the reason for the difference in outcome between the 1977 case and the recent one is that in the recent case Apple pointed out that the Beatles were legally EMI recording artists at the time the tapes were recorded, hence the tapes could not be legally recorded and/or distributed without EMI's permission.

Apple made all the right assertions in the 1977 case, although for reasons no-one has been able to determine, EMI itself has kept out of the case -- both in 1977 and in 1998 -- leaving it to Apple to prosecute on its own. I'm currently reading the transcripts of the more recent court action, at the start of which Apple's lawyers review the history of the suit(s), going back to 1977, and the relevant law. From their point of view, the judge in the 1977 case seems to have misconstrued Neil Aspinall's affidavit as conceding that Lennon gave permission for recording (and exploiting) the performance, when Aspinall did not make any such concession. In other words, the 1977 ruling was that since it was "common ground" that Lennon gave permission (when in fact it was not common ground) Apple had no cause for action.

There were other defects in that judgement; for one thing permission was supposed to have been obtained in writing, and it obviously wasn't. In any case, Lingasong tried all along to fudge the recording date because they knew that the EMI entanglement could be trouble; in fact, when they claimed that the tape was recorded in 1961, they were approached by Polydor, which claimed that they were in that case violating *their* contract with the Beatles (i.e., for the Sheridan stuff). Lingasong came to terms with Polydor, apparently in the belief that a) it would be easier to do than coming to terms with EMI, if EMI had gotten involved and b) that their settlement with Polydor would lend credibility to their claim that the tapes were made earlier than 1962.

For some reason, though, the courts seem not to have taken the EMI contract as being as important as whether or not the Beatles granted permission: it could be that if the Beatles had granted permission, then *they* would be in violation of their contract with EMI, whereas Lingasong could be seen to be acting in good faith, having obtained permission from the Beatles. Changes in the Copyright Law in 1989 made it easier for the Beatles to prevail in a suit than it was in 1977, which is why they revived it (first going after Sony and a company called Double H in the US, and tackling Lingasong after winning that one) after many years of not bothering.

In the sections I've read so far, the EMI contract was evoked in the case in a different way: instead of saying that Taylor could not legally have recorded the Beatles because they were under contract to EMI, Apple said, basically: look, they were signed by EMI, they had just released their first single, which did very respectably, and had just recorded their second -- why on earth would Lennon or the Beatles give permission to Taylor to record and exploit (Lingasong actually does claim that Lennon gave Taylor permission to use the recording as he pleased - which they construe to mean putting it out if he wanted) a performance in a bar, taped with an open mike on a cheap deck, when they were already doing professional recording?

---Allan Kozinn
<kozinn@aol.com>

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