BE PREPARED, THERE ARE SPOILERS AHEAD!!!
In 2019’s “Yesterday”, aspiring singer/songwriter Jack Malik is one of only three people in the world who, after a worldwide blackout hits, remembers The Beatles. Jack rises to fame and is on the way to fortune after claiming The Beatles’ songs are his and signs a record deal with a major label. Jack, however, becomes overcome with guilt and eventually announces to the world that it was not he, but John, Paul, Ringo and George who had written the songs, much to the chagrin of his manager.
While the movie itself is (in my opinion) wonderful, it also brings up an interesting legal question: if no one, including John, Paul, Ringo and George, knows that The Beatles wrote the songs, who owns them for copyright purposes?
Copyrights are governed by Federal Law, and while the statutes governing copyrights can be found under Title 17 of the US Code, copyrights are one of the few areas of law which the Constitution specifically grants to Congress, under Article I, Section 8. Unlike trademarks, which are used to identify the source of goods in commerce, and patents, which protect the rights to an invention, copyrights protect original works of authorship. Falling under the protection of copyrights are books, movies, music, computer software and even architecture.
While copyright protection exists prior to the registration of a copyright, in order to apply for a copyright, and be able to bring infringement suits to protect it, the author of an item, or if the item is a “work made for hire”, the person or entity who paid for the item, must file an application with the United State Copyright Office. Once filed and eventually reviewed and approved, the owner of the copyright may prevent others from using the copyrighted item for any reason (with some exceptions), up to the statutory time limit (generally, the life of the author plus 70 years). Alternatively, the owner may license the item to one or more persons for their use, whether that be through their playing of a movie on television, performing a “cover” of the song on an album, or putting an image on clothing.
The Copyright Act, while expansive in its discussions regarding proper use and enforcement, does not define “author.” However, when a word is not defined by statute, courts look instead to the “plain meaning” of the word. In past cases, author has been defined as “ the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737, 109 S. Ct. 2166, 2171, 104 L. Ed. 2d 811 (1989). Further, under the Copyright Act, joint works, more specifically defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” are also allowed, with all authors each having ownership, albeit shared with the other joint authors, of the copyright. When disputes related to ownership of a copyright exist, while the actual registration provides the registered owner with prima facie evidence of ownership, this can be overturned through the providing of proof to the contrary by other claimants.
In instances where a copyright is filed, and granted, but is later challenged under a claim that the information contained within the application is false, the court hearing the case will request that the Copyright Office review the application of the granted copyright in order to ascertain whether the applicant knew the information was inaccurate or whether, had the Copyright Office known that the information was inaccurate, they would have refused the application. Importantly, for an omission or misrepresentation in an application to be fatal, and the previously granted copyright revoked, in addition to being inaccurate, the omission or misrepresentation must be material (important) as well as an intentional or purposeful concealment of relevant information by the applicant.
So, What Does This Mean for the “Yesterday” Universe?
Given that in the movie, we are not given the nitty-gritty details related to the behind-the-scenes legal maneuvering (which would not have made for great cinema), we will look at three possibilities:
1. The record company applied for the copyrights but have not been approved.
We see in the movie that the whole process was a whirlwind of activity. From start to finish, it only covers a few months of time. For anyone who has ever dealt with the Federal Government, this might as well be the blink of an eye. Thus, it seems safe to say that, while the applications have been submitted, they are likely sitting on a desk somewhere. So, what does that mean for Jack and the record company? It likely means that, when the Copyright Office eventually finds the application, given Jack’s admission that he was not the author, the applications will be denied. Only the author of a work may apply for a copyright and Jack made it extremely clear that he was not the author. Whether or not The Beatles existed, or any of the men had any idea they wrote the songs, is irrelevant. As Jack is not the author, Jack cannot apply.
2. The record company had the copyrights approved.
With my apologies to the Copyright Office for my previous doubts, it is possible they approved the applications in a timely fashion. So, what does that mean now? Well, for an easy hypothetical, we will assume that one or more of The Beatles, or their families, brought a claim to invalidate Jack’s copyright. While the burden would rest on the challenging parties, given Jack’s admission in front of tens of thousands of people, as well as the testimony of the other two individuals in the world who remember The Beatles, it seems highly plausible that the copyrights would be invalidated, as the identity of the author in the application is inaccurate and a “material” fact, and Jack was fully aware when applying that he was not the author.
3. What happens to The Beatles?
While the first two scenarios are relatively straightforward, the question of who owns the rights to a song they do not remember creating is an entirely different question. Thankfully, however, we do have one comparable event with which to frame this question.
In 2000, in conjunction with the film’s release, the soundtrack for the film “O Brother, Where Art Thou” was released. It immediately began climbing country music charts before eventually winning a Grammy for Album of the Year, as well as Best County Collaboration and Best Male Country Vocal Performance in 2002 and selling nearly 8 million copies worldwide. Included on the album is the song “Po’ Lazarus.” Described as a “bluesy, melancholy old work song about a man who is hunted and gunned down by a sheriff with a .44,” the song was recorded by Mr. Alan Lomax in 1959, and features Mr. James Carter, an inmate in the Mississippi State Penitentiary, leading fellow prisoners in the song. The song was included in Mr. Lomax’s archives, before eventually being discovered by the producer of the film and used in the movie.
While the song was placed into the public domain by Mr. Lomax, and thus was not able to be copyrighted, Mr. Carter was, as the only person identifiable on the recording used on the album, entitled to royalties. This was in spite of the fact that, when asked, Mr. Carter had no recollection of ever performing the song.
But what does this mean for John, Paul, Ringo and George? While there appear to be no court cases which discuss amnesic authors, it is possible that the testimony of the three people who remember The Beatles, particularly Jack, who had more to lose than anyone else from the disclosure, could allow for the copyright to be registered. However, it is equally possible a court could rule that, as the authors are otherwise unable to testify as to their authorship, and as The Beatles members had (at least, supposedly) never met, that the songs belonged to both no one, and by extension, everyone.
While, usually, we finish these blog posts with something about how this applies to you, unless you are the only person in the world to remember Led Zeppelin, or someone claims that you actually wrote dozens of hit songs without you, or anyone else, remembering it, this post has little to no bearing on your life. However, should you wish to have something copyrighted, call our office, and ask how to protect your next multi-platinum hit.