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Court: no ‘implied contract’

A COURT has reaffirmed the principle that freelances' clients cannot claim "implied terms" extending the uses they can make of work beyond what is absolutely necessary to the commission.

In July 2010 Tyson Sadlo was engaged by a company called Oxygen 10 Limited to shoot portraits for Today's Business Woman. He subsequently granted syndication rights to Celebrity Pictures Limited. Celebrity Pictures and Tyson Sadlo sued a related company, B Hannah Limited, for infringement of copyright when it sold a picture on to BUPA Health magazine and at least one appeared on a website called Celebrity Angels. In the meantime Oxygen 10 had been dissolved.

B Hannah introduced all sorts of complications in their defence, leading to some entertaining comments from Mr Justice Floyd in the Patents County Court.

At trial the company suddenly claimed that the photos were a "collaborative effort" and its employees, referred to by the judge as "the Fionas", had set up and "taken" the portraits, with Tyson merely pushing the shutter release. This was given short shrift by Mr Justice Floyd: "There is no evidence to suggest that the Fionas were in control of any aspect of the taking of the photograph." Tyson Sadlo had received no more than a standard brief.

The company submitted a hard copy of a contract which it said it had sent to Tyson. Oddly, it said it had put it in the post, while all other communication had been by email; and there was no mention of it in the emails.

The alleged contract contained some manuscript additions, but, the judge found, "there was no evidence as to who made these additions". One says "SENT 17-6". "I cannot place any weight on these markings, as B Hannah invite me to do," Mr Justice Floyd concluded: the contract "was found many months into this litigation, long after its production had been requested, and after specific disclosure had taken place. I am quite unable to accept that it reached Mr Sadlo by any means."

Readers may wish to draw conclusions.

The company also claimed that, even if there was no contract, there was an implied assignment: it claimed this made it, and not either Sadlo or Celebrity Pictures, owner of copyright in the photographs or alternatively that it was a joint owner. The court rejected this, stating the principle that "If a court does imply a term, it should make no greater incursion into the rights of the copyright owner than is necessary to meet the case."

Then, in the words of Mr Justice Floyd's judgement, "Much effort was spent on seeking to establish that this was 'an Oxygen 10 matter'," and thus that B Hannah was not liable. "However, even in September 2010 when arrangements were being made to pay Mr Sadlo's invoice which was originally directed to Oxygen 10, he was requested to redirect it to B Hannah... It is clear in my judgment that by 2011 everything was under the control of B Hannah."

Negotiations for the sale to John Brown Media, publishers of BUPA Health, were carried out by Kerry Spencer, who described herself as Editor Boston Hannah International, but who Mr Harrington confirmed had a role at B Hannah. It was B Hannah who invoiced John Brown Media in August 2011. "This was said by Mr Harrington to be an error," the judgement records, "and a fresh invoice from Oxygen 10 was apparently issued on 17 October. However, by this date B Hannah had been notified of the claim of infringement against it. Given that all payments were now being directed through one account, and that the original invoice to B Hannah had already been paid on 6 October, the reissue of the invoice from Oxygen 10 appears to me to be artificial."

The Freelance particularly appreciates the judicial discretion in that word "artificial".

The parties were sent away to agree compensation within 14 days, which expired at the end of July: the Freelance has not yet discovered whether they managed that, or whether they're back in court on 1 October.

Cameth the postman?

There is, clearly, an implied warning in the ruling against claims of implied contracts. If you receive a contract, and do the work, you may very likely be held to have accepted it, even if you do not sign it. So check that snail-mail.

Last modified: 11 Aug 2012 - © 2012 contributors
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