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Beatlemania Co. Loses Apple Suit

June 05, 1986| From Times Wire Services

A Los Angeles Superior Court judge Wednesday ruled that the primary purpose of the stage show "Beatlemania" was to commercially exploit the Beatles' popularity and that the show and movie producers should pay $10 million to Apple Corps Ltd.

Judge Paul Breckenridge, in a 10-page decision, ordered Beatlemania Inc. and the show's creator, Steven Leber, to pay Apple $5.6 million plus 7% interest from September 1979. He ordered the This Is The Week That Was Beatlemania Co. and Ely Landau, which made the "Beatlemania" movie, to pay Apple $2 million, plus 7% interest from January 1981, he said.

Breckenridge also said Apple is entitled to a court order barring the further unconsented use or exploitation of the Beatles.

He found that Beatlemania's actions "amounted to virtually a complete appropriation of the Beatles' persona" without their consent. Such actions violated their record company's publicity rights, or their right to protect the group's entertainment qualities.

Attorney Bertram Fields, who represented Apple, said the judge agreed with his arguments that "Beatlemania" was more than a fair use of the superstar group's works. He called the ruling "far reaching" and said it means that entertainers can't be wholly imitated without their consent. Only a fair sample of the artist's work can be used, he said.

Apple alleged in its 1979 lawsuit that it owns various publicity rights and trademarks. Apple claimed Leber and others "appropriated to themselves" the value of those trademarks and the Beatles' goodwill and fame without paying for it.

Apple also contended that the imitation was vastly inferior to the Beatles' live performance and confused and deceived the public by passing itself off as a true replica of those performances.

Breckenridge agreed that the public may have been confused about whether the production was authorized by the Beatles. He said the disclaimer in the show's advertisements were in such small print that they were probably disregarded.

He disagreed with Beatlemania attorney Joel Smith's argument that both the show and movie were protected by the First Amendment because they contained a political message and were newsworthy.

Breckenridge said that entertainment is protected by the First Amendment, but not that entertainment which is "merely an imitation and does not have a creative component of its own." Even if the entertainment is newsworthy, he said, it is not absolutely protected by the First Amendment when there is a conflict with other rights, such as those for publicity.

Smith had argued that the show was a history of the 1960s, not just an imitation of a Beatles concert. The show included a slide presentation of events that occurred during that decade.

But Breckenridge again disagreed, saying the slide presentation "only provided a setting for what was a fantasy concert" by four Beatles' imitators. The setting, he said, was used to suspend the audiences' disbelief.

Smith could not be reached after the ruling Wednesday.

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