July 2003
High Court's 'Burnin' Desire to Understand Rap Music
(1) Confetti Records
(2) Fundamental Records
(3) Andrew Alcee
- v -
Warner Music UK Limited trading as East West Records
Warner were producing a compilation album and planned to use a track titled 'Burnin' on the album written by Mr Alcee, the rights of which were owned by Confetti. Terms of licence were discussed between Warner and Confetti and consequently a fax was sent from Warner to Confetti containing revised terms marked 'subject to contract'. Confetti signed the terms and sent them back to Warner together with a compact disc of the track, label copy for the track as a 'cleared' track and an invoice.
Warned recorded and mixed the track, included it into the album and produced number of copies of the album. However, prior to paying Confetti, Confetti informed Warner that they did not want Warner to use the track after all or at least the terms of the licence should be renegotiated.
Confetti issued proceedings and sought to restrain use of 'Burnin' track. Warner argued that a valid contract had been formed when Confetti signed the terms which were marked 'subject to contract'. Warner's alternative argument was that Confetti could not go back on its word after Warner had relied and acted on the licence. Confetti disputed this and claimed that no had been formed. Mr Alcee advanced a separate claim based on alleged derogatory treatment of his track because of the rap over it claiming that references to drugs and violence were detrimental to his character.
The High Court held that the words 'subject to contract' would be given their normal meaning and therefore no licence was created by signing of the terms. However, the court felt that sending a labelled copy and an invoice to Warner constituted an offer by Confetti which Warner accepted by its conduct (i.e. producing records). The acceptance had taken place before Confetti had revoked its offer.
Confetti were therefore estopped from denying that a licence was granted for Warner to reproduce the track. Confetti's claim for copyright infringement failed.
The court then turned to look at Mr Alcee's claim that Warner's amendments to his copyright work amounted to derogatory treatment actionable under copyright legislation. Warner has mixed rap lyrics over the original version of 'Burnin'. The track was played to the court and led to much consideration of the meaning of the rap phrases used. The High Curt considered that rap is a foreign language and expert evidence would be required to understand the meaning.
There was considerable disagreement between the parties of what was actually said and since no body could establish the meaning of the rap, there was no evidence to suggest that the honour or reputation of Mr Alcee had been damaged. As a result he had no claim for derogatory treatment of a copyright work.
Briffa comment:
Moral rights are rights that exist in all copyright works. However, they are separate from copyright and always belong to the author of the copyright work. Moral rights are personal to the author and cannot be transferred. However, moral rights can be waived after which the author can no longer assert his/her rights.
These rights are normally referred to as the rights of 'paternity' and 'integrity'. The right of paternity means that the creator has the right to be identified as the author each time the work is published, performed, broadcast, issued to the public or displayed in public. However, the author can only complain of infringement if it has first been asserted. The right may be asserted by a notice in writing.
The right of integrity is the right not to have his work subjected to 'derogatory treatment'. Treatment is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour and reputation of the author. This leaves considerable scope for dispute as to what is derogatory treatment.