[Author's note: This article first ran in The 910 in 1995. It is presented here without change, except the numbers for the footnotes are included here whereas they were omitted in the publication of the article. This article is copyrighted by Joseph C. Self and The 910, and is reprinted here by permission. That does not, however, give anyone else permission to reprint or republish it. Doing so could jeopardize your yearly visit from Santa Claus.]In 1977, a couple of "new" Beatle albums arrived in record stores throughout the world. One, "The Beatles At The Hollywood Bowl," was released by the Beatles' longtime label and with the help of producer George Martin; the other, "The Beatles--Live At The Star Club," was opposed by the band, and a lawsuit was filed in England to block the release of the album. This article examines the events leading up to the release, the claims made by the parties during litigation, and the rulings that allowed the release of the latter album. The primary source of the information contained herein is the actual published decision from England, published at [1977] FSR 345. (footnote1) I also have reviewed several magazine and newspaper articles that were published contemporaneously with the events, because the factual background of the case is not fully developed in the judge's opinion.
"In 1961 or 1962, the group of four musicians known as the Beatles performed a number of songs at the Star Club in Hamburg. A tape recording of that performance was made by Mr. E. W. Taylor. One of the Beatles, in the presence of the others, gave Mr. Taylor oral permission to make the recording; but no consent in writing was ever given."
It probably wasn't important to the judge to nail down the exact date, and it was apparently not widely known in the mid-70's, as contemporary accounts of the events show.(footnote 2) E. W. Taylor is better known to the public as Ted "Kingsize" Taylor, a fellow British musician playing in Hamburg with his band, The Dominoes, at the same time the Beatles were playing at the Star Club. It was not clear which of the Beatles gave permission to tape the show; Taylor may not have remembered at the time he gave his affidavit. He stated in that document: "It's O.K. with us--you get the beer in".(footnote 3) While permission was seemingly contested at one point by an affidavit sworn by Neil Aspinall,(footnote 4) the Court said that consent to making the tapes was "common ground", or a matter not in dispute.
It is also not disputed that the tapes were offered to Brian Epstein in 1963, who offered only L20 to cover the expenses of making them (I assume there are more than one spool of tape throughout this article; the judge wasn't sure, but said it didn't matter in making his decision). Taylor declined the offer.
The tapes were not seen again until 1972 or 1973, when they appeared in the hands of former Beatle manager Allan Williams. The story of how they wound up with Williams has varied throughout the years, and the true facts are not important to this article (one should perhaps read his book for his version of how they came to light). What is important is that Williams offered to sell the tapes to Apple about that time for the sum of L10,000 and a retained royalty interest, but the offer was again rejected. Williams also had no success in interesting various record companies to release the record.
In September, 1975, after failing to attract the interest of a major label, Williams struck a deal with Paul Murphy of BUK Records, a subsidiary of Polydor Records, for the production of records from the tapes. A new company, Lingasong, was formed for the project.
Still, it was going to be quite some time before the records would be ready to be placed on the shelves for the public. The technical work on the tapes is well-documented elsewhere; suffice for this article to say that it was quite an expensive undertaking to get the tapes in such condition that were considered acceptable (and some today still find the quality of the tapes distracting). In fact, in the fall of 1976, an interview with Allan Williams ran in Beatles Unlimited, in which he mentioned that Murphy was a co-owner of the tape, but he did not know when it would be released.(footnote 5)
However, the restoration work must have been completed by December, 1976, because an article appeared in Music Week reporting on the impending release of a "pre-EMI Beatles set". (The story was also picked up by Melody Maker in its Dec. 25, 1976 issue.) On January 21, 1977, Murphy was contacted by a solicitor (English term for a type of attorney) for Apple, a meeting that was "merely to find out what was going on". Murphy informed him that the record would be released very shortly. More conversations occurred on January 31, 1977, and correspondence was exchanged between the lawyers for each party. On March 23rd, Murphy told Apple's representatives that the record would be finished in the next two or three months, but may not be released in England due to the pending release of a Beatle record in May, 1977, a release that was scheduled to receive a massive advertising campaign. (The album that was pending on EMI's schedule was "The Beatles At The Hollywood Bowl.") At the end of March, in an effort to generate interest in the album's pending release, Murphy sent an apple to various members of the press along with an invitation that asked the recipient to come to the Apple Building at 3 Savile Row. The press event was not going to be held at that address, but someone was there that directed everyone to where the party was being held. This use of the name "Apple" upset those connected with Apple.(footnote 6) After a half-hearted attempt to explain his actions, Murphy apologized and pledged not to repeat it or attempt to imply any connection with Apple Corps Ltd.
It was about this time that Apple decided it was going to try to block the release of the album. A letter informing Murphy and his partners that the Beatles' attorneys had been instructed to take proceedings to prevent the distribution of the Hamburg tapes "unless they received unequivocal undertakings acceptable to (Apple)". The letter was delivered on April 1, 1977, and gave the Murphy group until 3:30 that afternoon to come to terms with Apple, or a request for an injunction would be filed. No such agreement was reached, and the action was filed that afternoon.
However, before discussing the parties' contentions, it should be noted that the nature of this action differs from most types of civil litigation. When an injunction is requested, the party seeking that remedy must be able to show that it is about to suffer some grievous harm, that a lawsuit after the fact would not place the aggrieved party in as good a position as he would be without the injunction, and that issuing the injunction would not work an undue hardship on the one being enjoined. There must also be at least the slightest bit of evidence that the complaining party has a chance to prevail on the merits of his lawsuit. (footnote 7) The Beatles had to be able to show that the release of the Murphy product would somehow cause them harm, that a suit after the release would not be sufficient to compensate them for their harm, and that Murphy would not be unreasonably harmed due to the delay.
The primary thrust of the Beatles' claim fell under the interpretation of an English statute. It is important to note that this statute is not a copyright statute; in fact, the claim made by the Beatles expressly disclaimed any contention based on ownership or copyright of the tape itself. Apple conceded, at least for the purpose of this action, that permission had been given for the making of the tape itself.
Without going into great detail, the Dramatic and Musical Performers' Protection Act (D&MPPA) is a criminal statute. It was originally passed in 1925, amended in 1958, 1963 and 1972. One violates this statute by making, selling, distributing or broadcasting a record without the written consent of the performers. It provides that violation of said Act is punishable by a fine of up to L 20 per record (up to a maximum of 400) and imprisonment for not more than two years. In essence, this would be the statute under which a bootlegger would expect to be prosecuted by the Crown in England.
It was the Beatles' position that the statute also gave them a right to bring civil litigation for what they claimed was the unlawful use of their performance. Without this right, The Beatles argued that there was no protection afforded a performer. On the other hand, Murphy cited the Court to a case from 1930 that held that performers had no property rights in their performances, and hence no civil remedies under that statute, and that the subsequent amendments to the law did not overrule the earlier case.
The judge found that the previous case from 1930 controlled this matter, as the law itself had not been changed by the subsequent amendments. The judge said that the criminal statute must be read in connection with the copyright laws of England. At the time the D&MPPA was enacted, the concept of copyright had been around for many years. A copyright gives a property interest in a work, but the copyright laws in England were not drafted so as to give a copyright in a performance. The judge found that Parliament had intentionally omitted granting this property right to a performance, since it would have been easy to revise the law following the 1930 decision had Parliament thought it prudent to do so. The judge ruled that creating criminal liability for acts done to the detriment of a class of persons is a common and effective way of providing protection for those persons. Noting that copyright law and its enforcement by civil litigation was closely related to the matter at hand, and given that Parliament had deliberately selected criminal prosecution as the sole remedy afforded to a performer, the Beatles could not receive injunctive relief on this theory.
Although it was not clear that this defense was advanced by Murphy, the judge went to some lengths to discuss the inactivity of Apple prior to April 1, 1977, to prevent the release of these albums. In light of the evidence of Murphy's plans, both in the trade papers and in direct contact with Apple's lawyers, Apple had long known of the existence of the tapes and the effort to get them marketed. As Murphy had already been out considerable expense in processing the tape to improve the sound quality, and in manufacturing the records themselves, the judge thought it would be unfair to issue an injunction at that late date. Apple had argued that it was not aware that a release in England was planned by Murphy, but only in the U.S.A. The judge said he could not take very seriously this contention.
He also stated that he thought it would be unfair to demand that the agreement to make the tapes be in writing, even though it was statutorily required. What The Beatles were seeking was discretionary relief, and it is not uncommon to disregard a requirement of a written instrument in making an equitable ruling of this nature. Since all parties agreed that permission was given by at least one of the Beatles, the failure of Murphy to present a written agreement was not fatal to his cause. (footnote 8)
After considering what he believed to be the weakness of the primary claim by the Beatles as to a right to bring this action under the D&MPPA, and after finding it unfair that last-minute proceedings would come after months of silence by the Beatles in the face of the obvious possibility of the release of these tapes, the judge declined to grant the requested relief.
However, whether or not they were about to become a victim of a crime, I am totally in agreement with the judge that the Beatles sat on their hands too long to expect him to grant their last-minute appeal for relief. Allan Williams made no secret his possession of and intentions regarding the tapes, several years before 1977. Paul Murphy had talked openly to the press about the pending release, and had been in discussions with Apple privately as well. To sit by and not utter a word of protest until shortly before Murphy was about to release his prepared product was very unfair to Murphy, and for that reason alone, the judge could have denied Apple's petition. I can't prove it, but I suspect this was the driving reason behind the denial, and the other stated reasons were ancillary.
I found no evidence that the Beatles pursued a civil action of any sort against Murphy. Naturally, in light of the judge's ruling, they may have decided not to throw any more money away on legal expenses. I also saw nothing to indicate that criminal sanctions were brought against Murphy, Taylor, or Williams. Even though the statute specifically states that "the consent in writing of the performers" is necessary, any prosecution witnesses would likely be bound by the admission in the civil court that consent, albeit oral, was given. As a former prosecutor, I know I would not charge anyone with a criminal offense simply because the parties had not reduced an admitted agreement to writing.
It is amazing how little foresight Brian Epstein had in offering only L20 for the tapes in 1963. Knowing the tapes existed in 1963, and knowing that the Beatles were already extremely popular, it wouldn't take a great leap of logic to figure out that there was a possibility of releasing those tapes to the public to try to cash in on the Beatles' fame. Perhaps this is unfair, given that we have 20/20 hindsight, but when one considers how much money the Beatles spent on lawyers trying, in vain, to prevent the issue of the Star Club tapes, the investment in obtaining copies of these tapes in 1963 would have been well worth it in the long run.
One final thing that I found to be a bit odd is that EMI was not involved in this action. Apple and the "four musicians known as The Beatles" were the plaintiffs, but it was EMI that was launching the big ad campaign for "The Beatles At The Hollywood Bowl," and EMI that stood to lose sales if the release of the Star Club tapes caused confusion in the marketplace. Murphy's assertion that he might hold up his records for a few months due to the pending release of the EMI record might be true, but if so, it shows he was missing an opportunity to ride on the coattails of the massive advertising blitz to support "The Beatles At The Hollywood Bowl." Another reason their absence seems strange is that the internal evidence of the tape itself (Ringo on drums and the song selection being the two biggest clues) indicated it was recorded after the Beatles were signed to record exclusively for EMI.
I've not played this record in years, but I'm still glad the record came out on a legitimate label. Otherwise, it would be in the hands of bootleggers only, and the fans would find themselves having to pay higher prices for what was, if not an enjoyable album, at least one of great interest to those that wanted to hear the Beatles as they were before Beatlemania swept the planet.
My thanks to Nick Kocz for providing me with copies of the articles that assisted me in preparing the background information of this case.
Copyright 1995 by Joseph C. Self. All rights reserved.
(Joseph C. Self is a practicing attorney in Arkansas.)ENDNOTES:
1. I'm not very familiar with the English system of case notation, but I believe this to be correct. I obtained my copy of the case from Lexis/Nexis, and have not seen the bound volume. Unlike the American cases I've discussed in earlier articles, this decision would not be readily available in a local law library; however, most university law libraries would have it in their collection.
2. The following is a representative sample of what dates were given by the media reporting on the announcement of a pending release, and/or the litigation to stop it: Melody Maker, 12/25/76 said January 1962; Beatles Unlimited, July/August 1976 had Christmas 1961; The Daily Telegraph simply said 1961 in an article published on 4/7/77. The wildest date was by the Times of London, which said the recordings came from 1972, a couple of years after the Beatles had gone their own way! However, by 1981, Philip Norman had the story exactly correct in his book Shout; others may have done so in the interim.
3. I have not had access to the affidavits, which I hope are still on file in England. My information as to the contents of that document comes from an article in the Daily Telegraph of April 6, 1977.
4. On April 11, 1977, Paul Murphy of Lingasong Records gave an interview of his recollections of the events leading up to the release of this record. In the interview as printed in Beatles Unlimited #13, (May/June 1977), he mentions the Aspinall affidavit, (which, again, I have not seen) and said that Aspinall had sworn in that document that Taylor had not had permission to tape it. Clearly, since Aspinall was not there, he would not have had first hand knowledge. As such, his affidavit was either withdrawn or given little weight by the judge.
5. Beatles Unlimited, Sept/Oct. 1976 (issue #9). Williams also said that he had considered using a bootlegger in Holland, but that the best offer he received was "50 quid". He then went on to say "the only reason I don't bootleg it is that I think the Beatles are entitled to their royalties." One might suspect the true reason to be more related to the money Williams was offered rather than the royalty issue. However, in his interview with Beatles Unlimited cited above, Murphy mentioned that he too had repeatedly offered to pay royalties to the Beatles on the sale of his product in an effort to smooth things over with Apple, and because he believed it to be the right thing to do.
6. Interview with Paul Murphy, Beatles Unlimited #13, May/June, 1977.
7. For example, if a landowner found that a neighbor was planning to bulldoze a 200 year old oak tree that sat close to the property line, he could apply for an injunction to bar any such destruction until such time as the property line could be established by a survey. The right to sue after the fact would be of little consolation under the circumstances, and the delay would likely not cause any great harm to the neighbor. This is also the standard when a restraining order is requested to keep a union from going on strike, or to keep a company from locking out the workers.
8. There was at least one writing presented to the Court. The judge referred to the Music Week story as having mentioned a letter from Brian Epstein to Taylor which supposedly proved not only that Taylor owned the tapes, but was allowed to release them. "I have seen the letter," wrote the judge, "and it plainly does nothing of the sort."