Thursday 16 February 2012

A fine mess

In Slater v Wimmer [2012] EWPCC 7 (16 February 2012) the rules about ownership of copyright got into a fine mess. The defendant is (according to Wikipedia) 'a Danish philanthropist, space advocate, entrepreneur, financier, adventurer, author and future space tourist'. I have also seen him described as a Danish celebrity, but as I haven't seen him in The Killing, Borgen or The Bridge, I am discounting that claim. As for being a 'space advocate', I wonder whom he represents? Or is it that he is concerned about the size of new housing (as my two-day-a-week-employers are)?

In his capacity as an adventurer (though presumably also wearing his financier hat, as I am sure these things do not come cheap) he hired a filmmaker to record him, and a few others, sky-diving from Mount Everest. The defendant dived, and the claimant filmed, and in due course the claimant sent the defendant a copy of the film for approval. I imagine he didn't take legal advice (and why should he?) because he seems to have crossed his fingers and hoped to be paid if the film were used.

And indeed it was used, in a programme on Danish TV (so, it's not all dark and gloomy thrillers). The claimant then sent the defendant an invoice. The defendant made clear that he was not inclined to pay, and the claimant uploaded it to YouTube.

The judge (HHJ Birss QC) decided that there was no agreed contract between the parties, so the ownership of copyright fell to be decided under the rules in the Copyright, Designs and Patents Act 1988. He held that the defendant was the producer, having made the financial arrangements, while the claimant was the director, and they were therefore joint authors of the film and co-owners of the copyright in it. Nothing unexpected there, given that no-one could produce a contract to show otherwise. But it's the upshot of that finding that's really interesting: each had reproduced and communicated to the public a work in which the other owned the copyright, and both therefore infringed.

Monday 6 February 2012

Where's the beef (again)?

Reposted from the Motor Law blog, because it's just too good not to share here too:

America is a difficult place to understand sometimes. Well, most of the time. An extraordinary degree of importance is attached to TV ads showing during the Super Bowl, and this year a General Motors ad has caused a furore. Bear with me - it does have a legal aspect.
The commercial plays on the Mayan calendar's prediction that the end of the world will come in 2012. According to the GM ad, surviving the end of the world (which, when you think about it, is a pretty pointless thing to do) depends on driving a Chevrolet Silverado.

Ford took exception, because the guy who didn't make it to the meeting place after the apocolypse drove the Ford competitor, the F-150.  The F-150? Isn't that the Formula One car? Or am I confusing it with the Ferrari pick-up? Either way, Ford seems to have suffered another corporate sense-of-humour failure: according to GM, the ad is an over-the-top spoof with "the devastation and destruction predicted to occur this year by the Mayan calendar [including] giant attack robots, meteors and frogs falling from the sky." GM's Global Chief Marketing Officer Joel Ewanick said:
We stand by our claims in the commercial, that the Silverado is the most dependable, longest-lasting full-size pickup on the road. The ad is a fun way of putting this claim in the context of the apocalypse.
The ad implies that the Silverado is more durable than the F-Series pickups, with Ford countering that there are more of its trucks on the road with at least 250,000 miles on them. Ford's lawyer has written to GM demanding that they "immediately cease and desist from making any unsubstantiated and disparaging claims regarding Ford's pickup trucks."
GM, still in the spirit of the ad, claim "we can wait until the world ends, and if we need to, we will apologize," continuing (probably not believing their good fortune at the additional publicity being generated by their rival):
In the meantime, people who are really worried about the Mayan calendar coming true should buy a Silverado right away.
Now (to pick up the legal theme in this story again), different countries have different approaches to comparative advertising. It almost invariably involves the use of a competitor's trade mark: in the Silverado ad, the F-word is used - and I don't mean Ferrari's parent ... So there is a prima facie trade mark infringement, except that most laws allow you to use your rival's trade mark to indicate its products. In the UK, it would have to be in accordance with honest practices in industrial and commercial matters and not take unfair advantage or be otherwise detrimental - broadly speaking it would have to be fair. You don't have to study American advertising practice for long to spot that they are rather more liberal over there: which makes it even odder that Ford should have reached for its lawyers over something like this - giving GM the oxygen of publicity even though it seems they had no intention of going further.
In a rational world, Ford's remedy would be to take the corresponding advertising slot next year and come up with something as amusing and memorable. If, that is, there is a next year.

Thursday 2 February 2012

So, what's the big deal about 9 November?

The same correspondent as I quoted earlier also writes:

And what does 7/8 mean to you? 7th August or 8th July ? This was one where, back in the 1990s and the days of contracts to develop computer or video games, some thought went into whether to "spell out": if the contract was US-driven and delivery of code was required (as it often was) early-October, then there could well be oral agreement for a date of 12th October - so 10/12 was tucked into a Schedule (no "spelling out") and then, if code wasn't on track for delivery, a reasonable argument arose over working to 10th December because that's what the US-driven contract meant by 10/12 ...
I don't recall ever encountering this in a contract, but it is certainly ripe with ambiguity, as I was reminded last year at the première of Richard Blackford's oratorio, Not In Our Time. On 11 September, not 9 November.

The Oxford Style Manual naturally tells us to use day-month-year, and notes that in America the order month-day-year is used. Surely it is much more logical to proceed from the smallest unit to the largest rather than jumping around? Or going from largest to smallest would also make sense, which is what we do with hours, minutes and seconds - an approach promoted by the International Standards Organisation, but not one that would help very much in legal drafting, where the only workable solution seems to me to write out the month in full.

Next: billions.

More irritating writing habits ("Irritating Things")

A long-standing friend dropped me a line yesterday, having read my posting, to reminisce about teaching Wills - something that I'd probably want to forget, had I ever done it: I certainly want to forget about teaching conveyancing, as the students did immediately -  and reinforcing numerals with the numbers spelt out in full. That way round, definitely.
[The] primary reason was to add certainty to the will which was only likely to be read after someone died and avoid "He definitely said he was going to leave me £100,000 - £10,000 cannot be right!" and [the] secondary reason was to draw attention to numbers when someone (usually emotionally) was checking through a will prior to signing. I kept the habit in commercial life because when prices were being changed from draft to draft over (sometimes) months - the words really helped keep track of totals payable.
Yesterday I was reading through a contract, drafted by one party and apparently approved by another, and evidently satisfactory as far as my client was concerned. I was however the first lawyer ever to come anywhere near it ... It purported to deal with the paternity right of a corporate body, and also protected the personal data of the three parties none of which are natural persons; it required none of the parties to do more than use reasonable endeavours to discharge the key obligations it imposed; and, the real reason for this digression, it contained many words and phrases given capital initials in the manner of defined terms, but not a single definition. Which reminded me how much I hate unnecessary defined terms.

Don't get me wrong, I love the way playing with defined terms in a legal document can have a huge effect on its meaning, and how a long and impenetrable contract can be made so much more terse and comprehensible by judicious use of defined terms. If I were minded to improve the one I read yesterday the first thing I would be would be to introduce a set of defined terms. I don't, however, feel that defined terms add anything except pomposity to client briefings and newsletters of the sort mass-produced by what I suppose we can now properly call "law firms", those professional organisations formerly known as firms of solicitors. Here's a doubly appalling example (no names, no packdrill) which I found after about 15 seconds' research on the Net:

The Bribery Act 2010 (the Act) 
The Bribery Act 2010 (the Act) came into force on 1 July ...
Classic! Just in case, in an article about the Bribery Act 2010, the reader would have trouble understanding what the author (who was not identified) meant by the expression "the Act". This is what  Robert St Ivo might call the Statement of the Bleeding Obvious school of drafting. I wonder whether it was a fee earner or someone in the firm's marketing department (they definitely have one) who created that abomination?

Even when used in legal documents, the irritation value of defined terms is greatly enhanced when bold type is used for them. I fail to see what additional value this has, unless the document is being written for the benefit of someone who is too dim to understand how these things work. The same goes for defined terms in block capitals, which are less often encountered but which seem to me to be equally unnecessary.

Next: date formats. I can hardly wait to let off steam!

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