Big Greetings and Copyright in Barney - Assignment Example

Law Report Introduction A new form of greeting card, to be used during the celebration of bonfire night, was created by an entrepreneur. These cards were named Banger Cards by their creator. This entrepreneur entered into an agreement with Big Greeting, a firm of greeting card manufacturers, in order to produce and distribute the Banger Cards. These cards were designed to create a tiny explosion and produce smoke and confetti, on being opened. There are certain requirements that provide several significant advantages to the purchaser of goods. Some of these are goods sold should be reasonably suitable for the purpose of their purchase.1 The Sale of Goods Act (SGA) 1979 requires the goods sold in the course of business to be of satisfactory quality.2 It also provides several remedies for breach of contract in sale of goods. These remedies include repair, substitution, partial refund, rejection, and full refund. The provisions of the SGA state that if a defect arises within six months of the purchase, then the defect will be construed to be present in the goods from the time of their sale.3 Significantly, the principal obligation that the goods sold should be of satisfactory quality comes into effect automatically, on every occasion that goods are sold, in the normal course of business. In Preist v Last, it was held by the court that the purpose for which the goods had been bought could be either express or implied. Another important condition is that if the goods sold can be utilised only for some specific purpose, then there is no necessity for the purchaser of such goods to question the seller regarding their appropriateness for that purpose. 4 In a contract for the provision of services, there are certain implied terms. These are addressed by the Supply of Goods and Services Act 1982, under sections 13 and 15. Specifically, section 13 of this Act declares that there is an implied term, which obliges the provider of a service to guarantee sufficient care and skill, in the course of providing the service in question. 5 Under the provisions of the Sale and Supply of Goods to Consumers Regulations 2002, consumers can reject goods if the goods are found to be defective and unsuited for the purpose of their purchase. It also enables consumers to claim compensation in such instances.6 It is incumbent upon the manufacturer of goods to ensure that these goods retain their form and quality, when they reach the consumer. The manufacture owes a duty of care towards consumers, and he has to comprehend the fact that goods that have been produced in a negligent manner, have the capability to cause injury or harm to the consumer. There is no circumventing this rule, even in situations where the manufacturer is unaware of the hazardous nature of his product, and where the manufacturer has no contractual relation with the consumer. 7 Jenny Issue Whether Jenny has any legal right against the Greeting Card Shop. Facts Jenny purchased a Banger Card for the Gift Card Shop and gave it to her son, Barney at their home. Barney opened the card, which exploded with such violence that it burned his hands and forced him to drop it. This dropped and burning card set fire to the sofa and caused extensive damage to the living room. Analysis Goods sold must be appropriate for the purpose for which they are bought. This is obligatory under the Sale of Goods Act 1979. Consumers have rights which they can exercise if there is a breach of contract. Consequently, it is important to determine whether a purchaser is a consumer. According to the SGA, a consumer is a person who acts for reasons that fall beyond the scope of his business, profession, or trade.8 In cases of negligence, the liability cannot be limited by virtue of any contractual exclusion term, if such negligence results in physical injury or death. As such, another important feature of contracts is that liability cannot be excluded for personal injury that is consequent to negligence, and this principle is embodied in the Unfair Contract Terms Act 1977. 9 Furthermore, this Act addresses situations where there is other loss or damage due to negligence, and provides that unreasonable exclusion clauses, in such contexts, are invalid. 10 In accordance with the decision in Donoghue v Stevenson, liability for negligence arises when the damage that had occurred was reasonably foreseeable.11 In order to establish liability in cases involving negligence, certain parameters were specified in the Caparo Industries Plc v. Dickman case.12 The three elements required to claim liability are; foreseeability, proximity, and justifiability. Conclusion In our problem, the manufacturer could have taken reasonable care, during the production of the card to prevent possible danger to the end purchaser. Moreover, the sales person should have taken proper precautions and checked the product properly before delivering it to the customer. Since the three elements of negligence were present in this problem, both the manufacturer and seller are liable for the losses caused to Jenny and her son. In addition, they cannot rely on the defence of exclusion clauses, since no such terms had been included in their contracts. Furthermore, they had sold an unsafe and unsatisfactory product. This violates the provisions of the Sale of Goods Act 1979 and the Sale and Supply of Goods to Consumers Regulations 2002. Jenny can reject the goods and can claim refund, in addition to damages for the breach of contract .She can also claim damages for the injury suffered by her son and the extensive damage caused to her living room. Barney Issue Whether Barney has any remedy against the manufacturer and the seller. Facts In our problem, the greeting card exploded on being opened by Jenny’s son Barney. Neither the manufacturer nor the local seller had taken any precautions to ensure the safety of the Banger card. Barney and Jenny had to be treated in the hospital, after having inhaled the smoke from the explosion. Subsequently, it came to light that Big Greetings had incorporated an excess of the explosives in the greeting cards. In addition, there was no warning message on these cards, regarding their explosive nature. Analysis Although Barney is a third party to the contract, the gift was intended for him. As per the Contracts (Rights of Third Parties) Act 1999, Barney is entitled to redressal against the manufacturer as well as the seller. The manufacturer and seller cannot seek protection under exemption clauses, since no such terms were included in their contract. Under certain circumstances, the third parties to a contract derive certain rights from the contract, in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999. Some of these conditions are where such entitlement is specifically stipulated in the contract or where the contractual terms bestow upon a third party, an advantage.13 As per the provisions of the Sale of Goods Act 1979, if a specific purpose can be attributed to a product, then there is no necessity to intimate it to the seller. In accordance with the decision in Godley v Perry, a product is to be construed to be unsatisfactory if has a defect that makes it unsafe. 14 Moreover, if the goods sold prove to be defective, prior to the completion of a reasonable amount of time, then such goods are to be presumed to have been defective, at the time of their manufacture. This principle was reiterated by the court in Lambert v Lewis. 15 Moreover, the Unfair Contracts Terms Act 1977 declares that no contractual term can exclude liability for negligence that results in loss of property, personal injury or death.16 Conclusion Even though Jenny did not inform the seller, about the specific purpose behind the purchase of the card, namely to give it as a gift to her son, this has no bearing on the establishment of liability for negligence. This is due to the reason that the sole purpose of such cards is to provide them as a gift to others. As per the Third Party Rights Act, Barney can claim redressal for personal injury as well as damage to the living room. He can proceed against the manufacturer and the seller for his rights under the provisions of the Sale of Goods Act and Sale and Supply of Goods to Consumers Regulations. Big Greetings and Copyright Issue Whether Big Greetings company had violated the provisions of the copyright law. Facts In our present problem, the manufacturer had made the greeting cards on the basis of the idea of the original creator. The greeting card, per se, was the original work of the entrepreneur, and the contribution of the manufacturer was limited to merely implementing the idea of the former into the form of a greeting card. The manufacturer had not performed any significant modification to the original idea of the entrepreneur. Analysis Copyright protection is accorded solely to original musical, literary or dramatic works. In this context, the quantity of knowledge, skill or judgement entailed in producing the work is immaterial, for conferring copyright. The creation of a work by either a company or individual results in an automatic copyright. Such work has to necessarily be original, and display certain amount of judgement, skill or labour. Whilst ascribing copyright, independent creation rather than the underlying idea assumes importance.17 Thus, in Sawkins v Hyperion Records Sawkins,18 who had arranged the musical work of Lalande, successfully claimed that he had employed his expertise and erudition to create the performing editions; and that these were not in existence, prior to his work, in that particular form. As such, Sawkins contended that his score constituted a new performing edition, which of necessity was to be bestowed with copyright protection.19 The main issue to be addressed in such disputes is whether the work reproduced by the defendant constitutes a considerable part of the claimant’s work. In our problem, the skill and expertise of the entrepreneur is of significance in the creation of the greeting card. Conclusion The entrepreneur had a contract with the manufacturer to produce and sell the greeting cards, which were based on his idea. A substantial portion of the entrepreneur’s creation was utilised by the Greeting Cards Company. Furthermore, the original name given to this work by the entrepreneur, namely Banger Card, was employed by the manufacturer. This indicates that there was no substantial change, made by the manufacturer. Consequently, the manufacturer’s act is a clear infringement of the copyright protection accorded by the law to the original creator. This renders the manufacturer liable for infringement of the copyright provisions, under the UK copyright law. The Entrepreneur can claim his rights of copy right against the Greeting Cards Company in a court of law. References Caparo Industries plc v Dickman (1990) 2 AC 605. Donoghue v Stevenson (1932) UKHL 100. Godley v Perry (1960) 1 All ER 36 (QB). Kelly, D. Holmes, A. and Hayward, R., 2005. Business Law. 5th ed. Cavendish Publishing. Lambert v Lewis (1982) AC 225. Preist v Last (1903) 2 KB 148. Sawkins v Hyperion (2004) EWHC 1530. Torremans, P. 2007. Copyright law: a handbook of contemporary research. Edward Elgar Publishing. The Consumer Contracts Regulations 1999. The Contracts (Rights of Third Parties) Act 1999. The Sale of Goods Act 1979. The Sale and Supply of Goods to Consumers Regulations 2002. Unfair Contract Terms Act 1977. UK Copyright Law, 2009. The UK Copyright Service. [online] Available at [Accessed 26 January 2011]. Read More