Musicians win on illicit CDs

Roger Pearson looks at The Beatles' fight to ban sale of an unauthorised recording of one of their early Hamburg performances

The recent High Court battle by the remaining members of the Beatles and John Lennon's wife Yoko Ono to prevent an Essex company from marketing a CD of one of the "Fab Four's" early performances at a German nightclub made national news.

But beyond the more obvious headline-grabbing aspects of the case, the action was of considerable significance in intellectual property circles.

The Beatles were represented by Simon Levine and Nicholas Valner, partners in the IP and media group at the late Frere Cholmeley Bischoff. Levine says the case's outcome, in which the defence was dropped and orders were granted banning the recording's distribution and the destruction of all copies, is important for musicians.

It is also one which has gone a long way towards demonstrating the significant legal protection available to performers to stop illicit recordings, particularly where recording companies have no legal rights to stop the sale of the recordings.

"This case is a victory for performers generally, not just The Beatles," says Levine. "It has brought the rights of performers themselves to prevent unauthorised use of their work sharply into focus."

Most actions of this nature tend to be mounted by the recording companies. But in this case the Beatles' record company had no rights over the recording. It was George Harrison, Sir Paul McCartney, Ringo Starr and Yoko Ono who took Lingasong Music to court, seeking an order to block it selling a CD of a show the group gave at the Star Club in Hamburg in 1962.

The original tapes were made by Edward Taylor, whose group, King Size Taylor and the Dominoes, also performed at the club the night the tape was made. He claimed John Lennon gave him consent to do what he wanted with the tape.

In court George Harrison gave evidence denying this, and the other Beatles, who did not attend, gave written evidence to the same effect. Harrison told the court he regarded the tape as the "crummiest" recording ever made in the name of the group. He added: "I could go out tonight and tape Mick Jagger, but that does not mean I could then go out and sell the recording."

Levine says that this is the basis on which the case was mounted under the performer protection provisions of the Copyright Designs and Patents Act 1988, the scope of which was extended by statutory instrument in December 1996.

The Act contains provisions aimed at giving all performers a remedy in the civil courts, which can be used to block unauthorised use of recordings of their performances. Levine says that prior to the introduction of these provisions there had been a "big gap" in the statutory law over performers' legal rights to stop unauthorised use of their work. This case, he says, illustrates the effectiveness of the provisions and the fact that the gap which did exist had now been closed.

Importantly, says Levine, Mr Justice Neuberger made the orders that had been sought by The Beatles, including a declaration confirming that the group had not consented to the recording being made or to anyone exploiting it commercially.

"What has happened here shows that these laws do have teeth and can be used to protect performers rights extremely effectively," adds Levine. "I think that for some it has revealed a level of protection that up to now many may not have realised existed."