AUDITION? TEST? UNDER CONTRACT?
In the majority of Beatles books, including the two “authorised” bios – The Beatles: The Authorised Biography by Hunter Davies (1968) and
Anthology (2000) along with The Beatles Recording Sessions by Mark
Lewisohn (1988), it has been reported by several who were present at the
6th June session that this was an audition, carrying with it only the potential for a contract. And further, that the issuance of that contract
would be chiefly dependent on whether they could sufficiently impress
George Martin with their studio recording ability.
However, in his 2013 volume Tune In, Mark Lewisohn has reversed course,
and is now leading the side that claims that:
“…the crucial documents are clear beyond doubt and can dispel any
misleading information for whatever reason it existed: this was no audition at all.The Beatles were at EMI because they already had a contract.”
(Tune In)
The crucial document he cites is EMI’s “red form”, typically filled out for
each of the various types of sessions that could be held, i.e. an Artist Test,
a Commercial Test, and a contractual Recording Session, with only the
latter containing “contract terms” such as royalty rates and Musician’s
Union (MU) fees for the artists.
Since the still existing forms associated with The Beatles’ 6th June session
contain the latter, including contractual information, Lewisohn opines that the red form document’s entries are clear and irrefutable proof that the
session was not either of the two types of Tests, but a contractually-based recording session.
Many authors propose that, despite the seemingly definitive appearance of
that single document, a plethora of other evidence exists to the contrary;
that the session was a Test of one form or another, and that a formal contract was dependent on the outcome of that Test.
We believe the contract status has a huge bearing on what happened next
to the group, particularly with respect to the drumming situation, which is
the principal subject matter of this book. It is therefore imperative that we
examine all of the available evidence to see if The Beatles truly were
performing under a contract when they visited EMI on 6th June, or whether such a contract was still looming, conditional on their satisfying the
musical sensibilities of the Parlophone record label head, George Martin.
The Paperwork Trail
The EMI paperwork shows the following timeline:
18th May 1962 – Application for Artists’ Contract submitted by George
Martin to Miss Evelyn P Harwood (Administration) within EMI,
commencing on 6th June 1962 for 1 year
24th May 1962 – Contract was sent from Miss Harwood to George Martin to be
forwarded to Brian Epstein for him to sign
Mr. G. Martin
The Beattles/Parlophone (Manager Mr. Brian Epstein)
Enclosed please find a copy of this contract for despatch to Mr. Epstein so
that he can sign and return it to us.
Brian Epstein is getting a royalty and I asked especially whether any
provision was to be made for payment of M.U. Rates to musicians at the
recording sessions, but I was told no, they would not get any such payment. I hope this is correct!
Evelyn F. Harwood, Administration, EMI Records Ltd.
25th May 1962 – Interdepartmental Memo from George Martin to Miss
Harwood confirming he would pay The Beatles ‘Musicians Union’ fees
To: Miss E. Harwood, Administration. Hayes
Re: The Beattles/Parlophone
Thank you for your memo’ of May 24th, enclosing the Contract for the
Beattles.
In point of fact, I will pay the musicians the ordinary M.U. Fee but I did not
think that it was necessary to include this in the Contract.
G.H. Martin, E.M.I. Records Ltd.
5th June 1962 – Judy Lockhart-Smith, on behalf of George Martin, sends the
contract Brian had signed to Miss Harwood
To: Miss Harwood, Administration, Hayes.
Re: The Beatles
I am returning herewith Contract for the above artist duly signed.
G. Martin. E.M.I. Records Ltd.
18th June 1962 – Memo from Miss Harwood to George Martin enclosing the
the contract which has been “signed by the Secretary and witnessed”
Brian Epstein / The Beatles
Herewith agreement between the above parties. This has been signed by the Secretary and witnessed, and is for the artist’s retention.
Evelyn F. Harwood, Administration
Contract Law
Even though both authors of this book have experience in dealing with
contracts, and contract law, we felt that we needed to obtain independent
legal advice. Enter Peter Bounds CBE, former Chief Executive of Liverpool
City Council and solicitor. He examined the contract, the correspondence,
and the quotes from George Martin and the EMI staff, Brian Epstein, and
The Beatles, before reaching his conclusions.
“In law, for there to be a valid contract,” said Bounds, “there are five
elements that need to be present:
- A valid offer and acceptance of that offer;
- Consideration provided by both parties; (both parties must bring something to the bargain/contract)
- An intention to create legal relations on the part of both parties
Certainty of terms, although not a required element, but if other elements
are in place, any uncertainty needs to be resolved by the parties.”
(DB Interview 2017)
Examining The Contract
The main question around the session is: when does it appear that the
parties intended a legal contractual relationship to exist? “The contract
may have been sent by the company as ‘an invitation to treat’ (i.e. to do
business), with Epstein returning the signed copy as the ‘offer’ and EMI
signing and returning it as the ‘acceptance’,” advised Bounds.
It is clear from the basis of the session on 6th June that neither side felt thatthe contract existed on 6th June, and that neither side intended to create
legal relations until after the audition and the company had decided to go
ahead. Further, by examining the clauses within the contract, especially
Clauses 10 and 3, it probably served The Beatles better on 6th June for the
contract not to have been in place. Why? Because this was a contract which heavily favoured the record company, and had it been in effect on 6th June,
it could have had a detrimental effect on the group. The Beatles would have been tied to Parlophone, who had no obligation to release a record, but it
would have stopped them from pursuing any other deals relating to their
songs.
This is because under the contract terms of Clause 10, it is very clear that
EMI’s only duties were to record six songs, and then, at their discretion,
decide whether to release them as records, or not.
Intention to Create Legal Relations
Peter Bounds further clarified the position of the two parties at the time of
the session on 6th June, and how we can’t determine if there was an
“intention to create legal relations on both parties”.
“The way a court operates is to look at what happened and say; ‘if the
parties had described what they did at the time in legal phraseology, what
would they have said they were doing at each point?” In this case, when the company sent the draft agreement out, they were most likely saying: ‘if we take you on, we propose it will be on these terms’. But the crucial word is ‘if’. Everything hinges on the audition. Hence the notion that the contract did
not come into effect until after the audition and the company decision to go ahead, i.e. it was subject to a prior condition, or , in lawyerspeak, a
condition precedent.
This would mean that the action of sending the contract to Brian Epstein
was not seen as an offer, but an “invitation to treat”, a phrase that has developed to represent the pre-offer stage.
What evidence do we have regarding the intention to create legal relations? We have to examine the conversation that took place between George
Martin and Brian Epstein upon their first meeting. George Martin made it
clear what would happen next:
“What I said to Brian was; ‘if you want me to judge them on what you are
playing me, then sorry I have to turn you down’. He was terribly
disappointed and I felt really sorry for him as he was such an earnest young man. I did like him. So I gave him a lifeline and said, ‘I tell you what, if you want to bring them down from Liverpool, I’ll give them an hour in the
studio. Okay?’” (Arena: Produced by George Martin/ BBC Television)
Brian, naturally, agreed to whatever terms were being offered to him from Martin, which was to give them an audition. In return, Martin agreed to pay them for the session. There was, therefore, no intention on George Martin’s part to enter into a legally binding contract before seeing the group. This
would have been standard industry practice. With the audition approaching, Martin sent the contract to Brian on the basis that, if the audition went well, Parlophone would give them the contract. George Martin was very clear
about this:
“Why on earth would I have signed a group before I saw them? I would
never have done that, it’s preposterous.” (Mojo “The Beatles, Ten Years
That Shook The World)
The Beatles also knew exactly why they were there, and in what capacity.
When Paul McCartney was asked about this momentous day, he stated: “We were told that it was an audition for George Martin.” (The Complete Beatles Recording Sessions) In Anthology, he said that George Martin “agreed to audition us, and we had a notverypowerful audition in which he was not very
pleased with Pete Best.” George, also in Anthology, remembered the day and its purpose clearly: “The Parlophone audition was in June 1962. It went not too badly. I think George Martin felt we were raw and rough but that we had some quality that was interesting.” (Anthology)
The Beatles, Brian Epstein and George Martin no doubt saw this session as
an auditionand the day the draft contract that Brian had signed would go
into effect, if they passed the test. There was therefore no intention to
create legal relations, and so no valid contract.
For further information and detail about this important moment in Beatles history, you can read the full chapter in “Finding the Fourth Beatle” –
http://www.thefourthbeatle.com
copyright David Bedford and Garry Popper. Finding the Fourth Beatle 2018
