An agreement was made for the assignment of the copyright in a music track, but it remained ‘subject to contract’. The assignor later sought to resile from the assignment.
Held: It is standard practice in the music licensing business for a licensee and a licensor to enter into a deal memo followed by a long form contract, but the deal memo’s and contract are not of a standard form. The circumstances are not so strong and exceptional as to displace the conventional meaning of the phrase ‘subject to contract’. The burden was on the Defendant to establish any custom or usage within the industry to the effect that ‘subject to contract’ does not bear the meaning it bears in normal legal usage. That burden was not discharged. The fact that a party to an agreement ‘subject to contract’ acts on the faith of that agreement does not raise any estoppel as to the existence of a binding contract. In this case there had been representations and acts in reliance upon those expectations. An estoppel was created, and a contract concluded. There was accordingly no action for copyright infringement.
The claimant also sought damages for the derogatory treatment of his work. That was claimable only if his reputation was damaged. The court had 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’, but there was no evidence of the author’s reputation or damage to it.
The Honourable Mr Justice Lewison
[2003] EWCh 1274 (Ch), Times 12-Jun-2003
Bailii
Copyright Designs and Patents Act 1988 80 97(2)
England and Wales
Citing:
Cited – Winn v Bull ChD 19-Nov-1877
By an agreement in writing, the defendant agreed with the plaintiff to take a lease of a house. The other details were included, but the agreement was ‘subject to the preparation and approval of a formal contract’. The plaintiff sought specific . .
Cited – Chillingworth v Esche CA 1923
The purchasers agreed in writing to purchase land ‘subject to a proper contract to be prepared by the vendors’ solicitors’ accepting andpound;240 ‘as deposit and in part payment of the said purchase money’. A contract was prepared by the vendor’s . .
Cited – Rossdale v Denny CA 1921
The plaintiff offered in writing to purchase a leasehold house, but the letter was to take effect ‘on signing of a formal contract’ and ‘This offer is subject to a formal contract to embody such reasonable provisions as my solicitors may approve’. . .
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .
Cited – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Unilateral Contract Liability
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘pounds 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Cited – Von Hatzfeldt-Wildensburg v Alexander ChD 26-Jul-1911
A purchaser wrote offering to purchase a house, saying acceptance was subject to her solicitor approving title, covenants, lease and form of contract.
Held: It was not a complete contract capable of enforcement: ‘It appears to be well settled . .
Cited – Michael Richards Properties Ltd v Corporation of Wardens of St Saviour’s Parish Southwark 1975
Property was offered for sale by tender. The tender documents contained all the detailed terms upon which the contract was to be based. The successful tender was accepted by letter, but by mistake the secretary who typed it typed in the words . .
Cited – Munton v Greater London Council CA 1976
With respect to the words ‘subject to contract’, Lord Denning said, ‘It is of the greatest importance that no doubt should be thrown on the effect of those words’. As to the difference netween the procedures of compulsory purchase and ordinary . .
Cited – Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council 1980
Threatened with a road widening, the plaintiffs left their old property, and began to develop their new one, again, on land owned by the respondent. In practice it was negotiated as an exchange of properties. The negotiations were held ‘without . .
Cited – Pasterfield v Denham ChD 1999
Distortion or mutilation is only actionable under the section if it is prejudicial to the author’s honour or reputation. . .
Cited – Mount Eden Land Ltd v Prudential Assurance Co Ltd CA 12-Nov-1996
The Court warned against extending the ‘magic’ of the ‘subject to contract’ label into the realm of unilateral licences. The question was whether a landlord had granted licence to the tenant to carry out alterations. The letter relied on as . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Alpenstow Ltd v Regalian Properties plc ChD 1985
The parties agreed in writing for the sale of land, the agreement contained a right of pre-emption. In the event of the owner wishing to sell it was to offer to sell a share in the property by notice. Within 28 days of the notice, the grantee was to . .
Cited – Western Electric Ltd v Welsh Development Agency 1983
An offer to grant a licence to occupy land may be accepted by taking up occupation. . .
Cited – Cohen v Nessdale Ltd CA 1982
Once negotiations are begun ‘subject to contract’, that label governs all subsequent communications between the parties unless the label is expunged by express agreement or by necessary implication. . .
Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC 1987
An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
Lists of cited by and citing cases may be incomplete.
Contract, Media, Estoppel, Intellectual Property
Updated: 19 January 2022; Ref: scu.183288