Discuss about the Beatles Memorabilia Intellectual Property/Contract.
Intellectual property refers to innovation that is brought about by intelligence and creativity of the inventor. They include things such as designs or manuscript that an individual can have right over and can apply for a trademark, copyright, patent, industrial design rights and trade secrets in certain jurisdictions (Rimmer, 2008). The intellectual property concept was actually established by the British statute of Ann (1710) and the statute of monopolies (1624) appears to be origins of patent law and copyright correspondingly.
There is an automatic protection of copyright if an authorship “original” work is “fixed” in a concrete medium of communication. Fixed means a work is “adequately enduring or steady to allow it to be perceived, duplicated, or else communicated for a time that is more than transitory period. In the case of Bleistein v. Donaldson Lithograph 1903, Justice Holmes stated, “the policy judgment that encourages the production of wheat also requires the protection of a lot of chaff” while warning against the use of aesthetic criteria (Mark Davison, 2015). Nevertheless, it should be noted that copyright protects duplication of expression of the work itself and not the idea behind it.
Since Paul is the owner and manager of “Fab Four”, he is the original owner of the copyright. Use of the Fab Four video to promote trivia night was an infringement of the copyright since there was no permission from Paul who was the original owner of the video in question. Under federal law, this infringement is considered a crime as copyright itself is a federal law (Jill McKeough, 2004). Paul could have a valid claim if can show that there was access to his work and the video is significantly similar to his. In court, an ordinary observer test is used to decide whether the work in question is similar.
In this case, it is clear that Don has infringed the copyright. Don used Paul’s work without permission, altered and used it in social media to market his fame and popularity. Don is in violation of production rights because of (the distribution right) distributing the altered video in social network and (the right to create derivative work), the mixed video is derivative of the original Fab Four video. There are six exclusive rights to the copyright owner over the copyrighted work. They are namely:
In reference to the above copyright owner rights it clear that Don has infringed several of the rights. The derivative works right was infringed by mixing the original video with cats video. He showed the video to the public through social media as his own, which was an infringement of public performance rights.
A disclaimer or exoneration of liability is a contractual phrase intended to avoid an individual who engaged the contract from taking legal action and litigating for personal damages. When items are left in cloakroom service free, the one receiving goods “must not be negligent” and there are no contractual rights according to Griffin’s words. She stated that if someone leaves a jacket or a coat on the rack of a crowded restaurant, “realistically he/she does so at his/her own risk (Ewan McKendrick, 2015).” If the place or restaurant was hired by an organization that the victim works with, then that person can claim for loss or damage to that organization since they are the ones who paid for that place and are therefore in an existing contract with the services offered in that venue.
A consumer law specialist Margaret Griffins stated that, “When you pay for a service, like a cloakroom service, under consumer law, you enter into a contract with the provider, which means they’re required to take reasonable care of your goods and perform the service with reasonable care and skill”. In this case, a person who leaves his belongings can expect them to be properly and safely looked after and cannot be given to someone else with the wrong ticket (John W. Carter, 2007). Though in reality, it is always difficult to determine and prove how the lost item was like, according to Griffins one might have a case for compensation if given the wrong coat or the coat is lost. In some places, disclaimers are put to waive responsibility for lost items. While these disclaimers might once have some legal basis, Silverman Sherliker a senior partner with a law firm stated that, “it can be deemed an unfair term to say you accept no liability,” under Unfair Contract Terms 1980 legislation.
Bob handed over his coat to Ringo, who works in the cloakroom and was issued with a ticket that has a disclaimer in the back. The disclaimer states, “We do not take any responsibility or liability for clothing checked in to our cloakroom.” The owners of Beatles Memorabilia are not liable for the loss of Bob’s coat that he claims to be paid. In the first place, this a free service offered to the customer of and Bob did not pay for it. There is therefore no contract between Beatles Memorabilia and Bob. He will not receive any compensation for his coat.
Interchanging goods and services between human have been a continued basic activity between human beings. The essentiality of trade and shopping rely on fundamental dealings and people settled on the basic values in their transactions, which were mostly relied on promises among people. On the other hand, in the modern age, levels of trade have grown, for that reason firms and merchants required obligatory and binding authorities to ensure their dealings. Even in a tiny business people act in accordance with those kinds of authorities and their set procedures. Offers and invitation to treat are the most important examples of dealings, and they have specific procedures to secure transactions among people. A person who makes an offer to another person with an intention to enter into a contract is referred to as offeror. A binding contract comes into existence when the offeree accepts the offer (Eugene Clark, 201). On the other hand, an invitation to treat has a different definition. It means inviting a person to make an offer. When a seller displays the price of an item either as a price tag or on a price list board for customers to see it is termed as an invitation to treat. For there to exist a contract, the offer must be accepted and both parties should agree to the terms and conditions of the contract. Silence can never be considered as acceptance of the offer.
The T-shirts cannot be sold to Barbara at $13.00 each. A price tag cannot be a contract if the price displayed by the seller is mistake. This is only considered as inviting a customer to make an offer and the seller does not necessarily need to accept the offer. A contract can only be formed when the seller accepts payment made by a buyer (Contrac, 2011). After this payment is made and accepted the seller is no longer obliged to make the buyer to pay any balance between the advertised price and the real price. For an online transaction, it might be more complicated.
Andrew Barrows described an invitation to treat as “…an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed.” Real offers can be accepted in formation of a contract while an invitation to treat is a representation that might not be accepted. A contract is deemed to be legally binding if a voluntary agreement is formed when an offerer makes an offer and the offeree accepts it. However, even if invitation to treat can’t be accepted it should not be ignored since it can have some effects on the offer (S. A. Christensen, 2009). In case a person makes an offer while responding to an invitation to treat the offer may assume the provisions of an invitation to treat unless the person making an offer generates different terms.
The t-shirts sold in the store are only unique to the store and there the store can set its price, as it considers profitable since no competitor has the kind of product. Ringo was directed to sell the t-shirts at price of $30.00, which were originally $45.00 each. Barbara believed that the price of the t-shirts was $13.00 as indicated white board. However, this price came as a result of misunderstanding between the manager and Ringo. Therefore when Barbara goes ahead to pay for five t-shirts $13.00 each it is obvious that her offer will be turned down. Either the seller can offer to sell the t-shirts at the original price of $45.00 or the discounted price of $30 since Barbara was not aware of any price before other than then one on the white board.
There are three basic features required for existence of a legally enforceable contract.
Already Joe owes the store a bill worth $180.00. When he offers the box of figurines to pay for his bill, it was accepted even without knowing what is inside. Regardless of what could be in the box after checking it Joe was not to be asked for any further payment. Yes. There existed a valid contract with Joe. A valid contract exists when an offer is made and accepted (Gillies, 2004). Since the offer that Joe made was accepted and his box of figurines accepted a deal was sealed hence a valid contract. All the basic features of a legal binding contract were honored in sealing this deal.
Once an offer has been rejected, it ceases to exist. Rita made a counter offer by rejecting the earlier price quoted by the offerror and proposed a new price of $4500.00. It therefore means that there is no contract formed between the two. Counter offer refers to contract made to respond to another offer. Making counter offer means that there is an automatic rejection of the asking offer, which under terms of counter offer requires acceptance, or otherwise there is no contract existing. This implies that the original offer has been rejected and the game is tossed back to the offerror leaving him with only three choices. (1) To expressly accept the offer by replying or through implication (i.e. by not replying), (2) give another counter offer in response to the one the offeree made, or (3) expressly reject the offer. Note that no binding contract is creatable unless one party accepts the offer by another party. If there is a change of mind by offeree and tries to agree with the terms of the original offer a new offer will be formed in contractual terms. If Rita replied, by stating that she agreed to the asking price there was no contract and this can’t restore the original offer. This became a new offer, which is not been accepted to. Usually when both sides makes offer and counter offer it brings confusion among them because they may not understand when the acceptance or rejection is made. “An offer or counter offer can be revoked any time by one party before acceptance is made,” according to the general rule (Australia, 2014). There can be no legal binding until an offer or counter offer is accepted and this is where complication lies in most cases. The law says there has been “meeting of the minds” when acceptance occurs and is communicated to the offeror.
In Rita’s case, she was offered the figurines at a price $5000. She rejected this offer by making a counter offer to buy the items at a price of $4500. Up to this stage, there is no legal binding contract as the buyer and the seller have different minds on the price of figurines. In the following morning, it is communicated to Rita that she can have the figurines at $4500 although she does not read the message up to 9.45am. The point is that acceptance of the counter offer that Rita made in response to the asking price has been communicated. After this communication, there is a legal binding since there exist consensus of minds (Contrac, 2011). A contract becomes binding when acceptance has been communicated to the offeror.
About the same time (9.00 am) that acceptance message was sent to Rita, she also sent a message to revoke her counter offer and accept the prior offer of $5000 which the seller had revoked by accepting to the counter offer. This message is received at 9.30 am and seen at 10.00am. According to the electronic records the $4500 deal was fully communicated and was earlier acceptable to both parties. Rita’s acceptance of $5000 was made at the same time with acceptance of $4500 but was seen later. At the same time, she had asked for cancellation of her counter offer, which could not be made before acceptance since the communication was late. My opinion is, Rita has made a new offer of $5000 that has been communicated to the seller but has not been accepted yet. There is no legal binding contract on the transaction. So the figurines have not been sold to Rita because there is no agreed price among the two. The $4500 that could have been binding was canceled by the new Rita’s offer of agreeing to the original price, which the seller himself had changed mind on.
References
Australia, L. S. o. W., 2014. Remedies for Breach of Contract: Papers Presented at a Series of Seminars on Remedies for Breach of Contract, Held on the 18, 20 and 26 March 1986 at the Kings Ambassador Hotel, Perth. Perth: Law Society of Western Australia.
Caenegem, W. v., 2010. Intellectual Property Law in Australia. illustrated ed. Darwin : Kluwer Law International.
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Contrac, C. B. o., 2011. Carter’s Breach of Contrac. Perth: LexisNexis Butterworths.
David E. Allan, M. E. H., 2007. Law of contract in Australia. Macquarie: CCH Australia.
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