Legal Commentary

As of today, the Beatles catalog is available on iTunes. I'm unusually giddy about this, even though I own the majority of the band's catalog in various physical formats, and even though the band is five years late to the party. (If you are listening, Mr. Jobs, I would like to buy mono versions of Revolver and Sgt. Pepper's).

It nevertheless feels appropriate to pause and have a moment of silence for those Beatles tribute bands who might well have made their best sales to frustrated consumers searching in vain for authentic Beatles recordings on iTunes in months past. The market for Beatles look- and soundalikes is sufficiently valuable that one tribute band, the Fab Four, recently sued another Beatles imitator, the Fab 4, for trademark infringement (although the Fab Four subsequently voluntarily dismissed its case).

I occassionally sought out Beatles recordings on iTunes prior to today's release notice, and until today, I primarily found offerings from tribute bands and other artists covering Beatles songs. Some consumers may have even purchased those alternate offerings when they found no authentic Beatles material available. Could iTunes be liable for trademark confusion, specifically, initial interest confusion?

You might recall that "initial interest confusion" can occur when one party intentionally uses another's mark to capture consumer attention, even if the confusion is quickly dispelled. The Second Circuit recently declined to dismiss a claim by Rescuecom against Google that alleged Google recommended "Rescuecom" as a keyword to those AdWords consumers that were also Rescuecom competitors. The Ninth Circuit has held that triggering competitors ads in response to a search for plaintiffs marks might also create initial interest confusion.

Could Apple, knowing as it does that there are no Beatles tracks in its library, be liable for returning search results that include Beatles imitators? One factor cutting against initial interest confusion is that many consumers who followed the Beatles knew they were one of the last iTunes holdouts. On the other hand, iTunes is certainly better placed than many consumers to recognize the difference between authentic and soundalike Beatles. Should Apple be required not to return any results, or offer only the solo works of former Beatles to its customers? Perhaps not - we would be unlikely to grant a request by the Beatles to keep their recording a safe physical distance from the Monkees or any other imitative contemporary in a record store.  And competitors are often allowed to boast, "If you like X, you'll love Y."

As a final thought, should it matter whether the imitators are performing faithful cover tunes, in accordance with Sections 114 & 115 of the Copyright Act, or whether the imitators are creating new works derived* from the original musical compositions and sound recordings? The former do not infringe copyrights in the imitated sound recordings or their underlying musical compositions, while the latter would, subject to fair use.

* The Fab Four's Christmas album, Hark!, includes remakes of traditional Christmas tunes combined with recognizable elements of Beatles hits. For example, the Fab Four remake of Silent Night plays over the Indian sitar drone of Tomorrow Never Knows, while the title tune, a remake of Hark the Herald Angels Sing, closes with three part harmonies and a guitar lick identical to those that close Help!