Confetti Records & Others v Warner Music UK Ltd
Reference:  EWHC 1274;  EMLR 790
Court: Chancery Division
Judge: Lewison J
Date of judgment: 23 May 2003
Summary: Copyright - Musical work - Licence - Offer and acceptance - Moral rights - Derogatory treatment - s.80(2)(b), CDPA 1988
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Instructing Solicitors: Silverman Sherliker for the Claimants; Russells for the Defendant.
The Claimants owned the copyright in a track of garage music (‘the track’). The Defendant wanted to use the track on a compilation album and after negotiations sent a fax to the Claimants containing deal terms, marked “subject to contract”. The Claimants faxed back a signed version of the terms, sent the Defendant a CD of the track, label copy for the track as “cleared” and an invoice. However, before the Defendant tendered payment and before any full contract had been entered into the Claimants informed the Defendant that they wanted to renegotiate terms and that the track was not to be used in the meantime. The Defendant’s compilation album had by this time been recorded and manufactured. The Claimants issued proceedings and sought to restrain use of the track. The third Claimant, the originator of the track, also brought a claim for derogatory treatment of the work under s.80(2)(b) CDPA 1988.
(1) Whether the fax constituted a contract; (2) Whether the Claimants had made an offer which the Defendant had accepted; (3) Whether the Defendant’s addition of a rap to the track constituted derogatory treatment under s.80(2)(b) CDPA 1988.
(1) The use of “subject to contract” on the fax prevented it from constituting a contract. (2) The delivery of the track and invoice constituted an offer which the Defendant had accepted. The Defendant’s use of the track was not therefore an infringement of the Claimants’ copyright. (3) To constitute derogatory treatment, the treatment of the work had to prejudice the author’s honour or reputation. The meaning of the words of the rap could only be explained by expert evidence and had not been proved. No evidence of prejudice to the third Claimant’s honour or reputation had been shown, so the claim for derogatory treatment failed.
This case about rap music received much press coverage as, in the judge’s words, it involved “the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as “mish mish man” and “shizzle (or sizzle) my nizzle”. Interestingly, there was a moral rights claim alleging derogatory treatment. It remains the case that moral rights actions are still relatively rare in the United Kingdom, unlike the civil law jurisdictions. There still remains a notable paucity of authority where moral rights claims have succeeded in the UK.