Of note is the following: "The lawsuit states that Fuego does not have permission to sell the fifteen-song performance because at the time of the recording the Beatles had already entered into an exclusive contract with EMI prohibiting the third party recordings of their concerts." (Emphasis added.)
Query - is Rolling Stone's analysis flawed? Or do they merely need to clarify?
The EMI-Beatles contract would likely have said something like "we (EMI) have the exclusive right to exploit your sound-recordings, which are really OUR sound recordings because any recording you make -- live, or in the studio -- you assign the copyright to us and/or is a work made for hire".
So, Fuego didn't have permission to sell the performance because EMI had the right to record and exploit Beatles' live performances. That the agreement prohibited third party recordings merely goes to the fact that Fuego did not get permission to record and/or exploit the concerts from EMI. Even if the Beatles had not already entered into a recording agreement with EMI, there would still need to be authorization from someone (e.g., the Beatles). Thus, notwithstanding the contracts relevance, isn't its existence at the time of the recording dispositive as to standing -- who is the proper plaintiff -- rather than to the issue of copyright liability?