Case Summary – Confetti Records v Warner Music UK ltd [2003]
The claimant is an independent record company and the defendant wanted to use the track on a complication album produced by the record company with a payment in advanced. The claimant wanted to sue the defendant for the infringement of copyright in a music track. The defendant faxed the claimant with revised terms of the deal that were marked subject to contract. The claimant faxed back the defendant with a signed copy of the deal memo followed by an invoice for the advanced payment and label copy as well as the compact disc of the original mix of the track. However, later, the claimant wanted the defendant to withdraw the track from the album. The track incorporated in the album had been produced with considerable expense. Defendant in a defence stated that there was no infringement of copyright as there was a binding contract between the parties based on the basis that the deal memo amounted to a binding contract where the defendant had been licensed to reproduce the track or on the basis that the claimant sending of the track and the invoice constituted an offer which the defendant had accepted by using the track. Held The judge held that the inclusion of the track on the album was not an actionable infringement of copyright. The claimant sending of the track and the invoice was an offer capable of acceptance by the defendant even though the use of the phrase ‘subject to contract’ on the deal memo should not be binding. Once the defendant had accepted the offer by conduct, the defendant cannot withdraw the offer as a contract has come into existence. Conclusion Contract can be concluded by conduct
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