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CANADIAN EMOJI COURT CASE: TO EMOTE OR NOT TO EMOTE …. that is the question.

By on

July 11, 2023

- News

Introduction: In a first-of-its-kind ruling, a Canadian court has recognized that a “thumbs up”
emoji can be a legally binding acceptance of a contract. Yes, you heard that right – emojis now
have a place in the world of legal contracts. Welcome to the South West Terminal Ltd. v Achter
Land, 2023 SKKB 116 (CanLII) case aka, the “Canadian Emoji Case,” where a simple thumbs-
up emoji played a crucial role in determining the acceptance of a contract.


The Case Unveiled: In Saskatchewan, a farmer, Chris Achter, received a text from a grain
buyer, Kent Mickleborough, offering a contract to purchase Mr. Achter’s flax. Mickleborough
sent a photo of the contract and asked Achter to “please confirm flax contract.” In response,
Achter replied with a thumbs-up emoji. Little did he know that this seemingly innocuous gesture
would become the focal point of a legal decision that would garner international attention.
Justice T. J. Keene awarded SWT $82,200 in damages, plus interests and court costs in a
summary judgment in Swift Current on June 8.


The Changing Landscape of Communication: As technology shapes our daily lives, the
different ways in which we communicate can affect the ways that we enter into contracts. Once
upon a time, a contract was a formal document which had to be printed and signed in ink; with
the advent of email and electronic signature services, it has become much easier to enter into
written contracts – so it has become increasingly important to communicate clearly and
deliberately to avoid misunderstandings. The recent ruling by the Canadian court acknowledges
the growing influence of emojis in modern communication methods. Emojis have become a
concise and expressive language, with the power to convey intent and acceptance in
contractual relationships. This new landscape requires us to adapt to the changing ways in
which agreements are formed.


Decoding the Elements of a Contract: To understand the court’s decision, we must examine
the essential components of a valid common law contract: offer, acceptance, and consideration.
In the “Canadian Emoji Case,” Mickleborough’s text message served as the offer for the flax
contract. Achter’s response, in the form of a thumbs-up emoji, was deemed an acceptance of
the contract’s terms. Consideration was evident in the agreed-upon price and the expectation of
flax delivery. These seemingly small symbols played a significant role in establishing a legally
binding agreement.


The Battle of Interpretation: The case sparked a battle of interpretation, with each party
offering their own perspective on the meaning behind the thumbs-up emoji. Mickleborough
argued that Achter’s response indicated his agreement to the contract’s terms, while Achter
claimed it was merely an acknowledgment of receipt. The court carefully analyzed the parties’
past interactions and concluded that Achter’s thumbs-up emoji constituted an acceptance of the
contract.


A Word of Caution: While emojis now have legal significance in contracts, caution is
necessary. Emojis can be open to interpretation and may carry different meanings for different
individuals. When engaging in business discussions via text, it is crucial to ensure clarity and
mutual understanding. Misinterpretation of emojis can lead to unexpected legal consequences.
Exercise prudence and seek clarity to avoid potential misunderstandings.


In Conclusion: Balancing Law and Modern Communication: With a common law ruling the
“Canadian Emoji Case” has thrust us into a world where a simple thumbs-up carries the weight
of acceptance of a complete contractual agreement. We must navigate this evolving landscape
carefully, particularly where corresponding by informal methods like iMessage, WhatsApp
has become the norm. Emojis have now become a part of our modern communication methods, and
it is essential to understand their legal implications. Pause before you respond, and make sure
that you are not inadvertently agreeing to something you didn’t mean to agree to. And, consult
with an experienced attorney about different procedures like email disclaimers that you can put
in place to avoid this kind of situation.


-Nathanael Amore and Sarah Hsia
Rockstone Legal

Case Citation: South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII)


Disclaimer: The views expressed in this article are those of Rockstone Legal and do not
constitute legal advice.

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News

JIPO Trade Mark Fee Increases

By on

September 7, 2022

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The Jamaica Intellectual Property Office has just released a Draft of its new Fee Schedule which should come into effect on or before December 1, 2022.

Spoiler alert: the price increases are substantial, but the new fees are still within International norms.

For example, the JIPO fee to file a new trade mark application has increased from J$7,800 for the first class to J$13,700 and the publication fee (due on acceptance of the application, usually about six months after filing) has increased from J$10,000 to J$13,700. The fee for each additional class would move from J$2,200 to J$4,200 – almost a 90% increase.

The JIPO fees for a hypothetical three class application, assuming no amendments required, will move from J$22,200 to J$35,800 – an overall increase of more than 60%.

The new Trade Mark Rules will also provide a trade mark owner the ability to Request Expedited Examination – for a hefty fee! A Request for Expedited Examination will cost J$30,000 for the first class and J$15,000 for each additional class; a Request for Expedited Processing will cost J$20,000 – and both of these are in addition to the regular fees. So if you wanted to expedite that same three class application, you’d be looking at total fees of J$115,800. Typically, a trade mark application takes 10-12 months to register, assuming no amendments or refusals from JIPO; it is unclear how much faster an “expedited” application will move through the system.

These fee increases are part of the new Trade Mark Rules necessitated in part by Jamaica’s accession to the Madrid Protocol. But it should be noted that while the increases appear to be steep, the new fees are still well within International norms, and trade mark fees in other countries can be significantly higher – in the US, for example, that same hypothetical 3 class application could cost between US$825 and US$1,050 in USPTO fees – and there is no option to expedite, so the application will take between 10-12 months regardless.

So, if you are considering filing a new Jamaican trade mark application on a budget, you might want to file sooner rather than later, to take advantage of the lower fees before the increases take effect.  

– Sarah Hsia

Disclaimer: The views expressed in this article are those of Rockstone Legal and do not constitute legal advice.

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News

“Buying Property in Jamaica: Considerations for Purchasers of Pre-Construction Property”

By on

August 9, 2022

- News

Returning residents, young urban professionals, and REITs have created a seemingly insatiable demand for housing options across Jamaica. There has been a steady and gradual growth in areas like Kingston and other metropolitan areas in Jamaica namely, Portmore, Montego Bay, Spanish Town, and even Drax Hall / Priory in St. Ann. Currently, about 56.65 percent of Jamaica’s population lives in urban areas. The completion of highways to Mandeville and St. Thomas means that these areas are ripe for continued development as well.

This fiercely competitive climate for real estate has meant that more and more purchasers are buying units before construction is complete – and sometimes even before ground has been broken on a project.  But entering into an agreement for sale for a pre-construction property comes with special considerations: construction delays, cost overruns, escalation clauses, etc., and buyers typically have little to no leverage to negotiate terms with developers.

Why consider Pre-Construction Strata properties

Sometimes, it’s the availability; other times, it’s the lower price. In most cases, the choicest units will sell off quickly, so the earliest purchasers will have their pick of the units. It is also usually significantly cheaper to purchase pre-construction units. This is because developers offer discounts to meet sales quotas set by their lenders/investors, which may require a percentage of units to be sold before issuing a construction loan. Some buyers are motivated to act swiftly to secure the “first mover’s advantage”.

The reality of the situation

Many purchasers of pre-construction properties feel pressure to sign an (AFS) agreement for sale quickly, to lock in their choice of unit. But there are some special considerations for pre-construction properties that purchasers should take into account before inking a deal, including:

Delays. Construction inevitably takes longer than anticipated – and even reputable, experienced developers contend with materials shortages and logistical issues that can push projects over deadline. Delays can impact a purchaser in at least three ways: 1. If you are planning to live in the unit you are purchasing, do not make concrete plans to move until you have keys in hand – or, at a minimum, until the Certificate of Practical Completion has been received (indicating that a unit is nearly complete). 2. If you are getting a mortgage, you and your attorney need to keep track of the date on which the Letter of Undertaking expires, so that you can seek an extension if necessary. 3. Significant construction delays can result in increases in the cost of building materials and labor, triggering the escalation clause in your AFS, and meaning that the cost of your unit could increase 3-5% or more, depending on your specific circumstances. You will need to be able to find this cash in order to close.

Escalation. Almost all pre-construction / construction agreements for sale include an escalation clause, which allows the developer to adjust the purchase price upwards at completion to account for inflation, increased costs in materials or labor, etc. Sometimes the escalation clause can include a provision that requires a purchaser to match a later, higher bid received by the developer for the unit. As noted above, you will want to be  sure you have enough cash on hand to cover any escalation costs.

Parking. This is a consideration common to ALL strata properties that are often overlooked by purchasers: how many parking spaces is your unit entitled to? Are they deeded (they belong to you) or assigned (they are marked for your use, but form part of the common property of the strata)? If a 2-3 bedroom unit has only one assigned parking space, it means there will be fierce competition for visitor’s spots and residents may park outside of marked spaces.

Utilities. Another consideration common to ALL strata properties: does the development have water storage and a backup generator, or do you need to install your own? If you are responsible for installing your own backup systems, make sure you account for the cost of doing so in your budget, as water and power outages are common across Jamaica, and rapid rate of development in certain areas of Kingston in particular has outpaced the ability of the utility companies to provide reliable service. Similarly, if you are purchasing in a high-rise (3 stories) does the development have provisions for a water pump to carry water to the higher floors? NWC is only obligated to supply enough pressure to reach the second floor – which may leave some residents high and dry.

Approvals and Permissions. Has the developer gotten planning permission, and are they building in compliance with that permission? If not, they could be subject to lawsuits or stop work orders imposed by local planning authorities that could delay construction indefinitely.

In addition, pre-construction purchasers should also take into consideration all of the regular issues that can arise in stratas: what do the by-laws say? Are pets allowed? Are short-term rentals (e.g, AirBNB) allowed? What is the recourse against owners who fall into arrears with their monthly maintenance fees? Are there any breaches of restrictive covenants that need to be addressed? Have you taken into account the various additional costs and fees that it will be necessary to pay in order to close?

Conclusion

If you are flexible with timing, and budget for contingencies, pre-construction purchases can be attractive investments. But purchasers should do their due diligence and be prepared for the special contingencies involved. Seek the advice of experienced legal counsel, who will take the time to go through the AFS with you, and explain the various provisions, so that you don’t get caught flat-footed.

-Nathanael Amore and Sarah Hsia

Rockstone Legal

Disclaimer: The views expressed in this article are those of Rockstone Legal and do not constitute legal advice.

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News

Ownership of Sound Recordings in Jamaica: Lessons Learned from Stephenson v Hibbert [2022] JMSC Civ. 65

By on

July 27, 2022

- News

Ownership of master sound recordings has been a hotly contested issue in Jamaica throughout the history of Jamaican music. The Copyright Act of Jamaica seemingly addresses the issue head on: section 22(1) states that the author of a work is the owner of the copyright in that work unless there is an agreement to the contrary, and defines the author of a sound recording as “the person by whom the arrangements necessary for the making of the recording or film are undertaken.”


Local industry custom and practice has adopted a default rule that the producer owns the masters, but until now there has been little guidance from the courts as to what the language of the Copyright Act means in practice: what does it mean to “undertake the arrangements necessary” to make the sound recording? The lack of clarity on this issue, and changes in technology and production of music have led to continued disputes between producers and artistes.


The recent judgement given in the case, Cabel Stephenson v Doreen Hibbert et al [2022], is a rare example of a local decision that sheds a bit more light on this area. Although the overall claim involved a number of other legal issues, the Court looked in detail at the question of copyright ownership of master sound recordings. In the end, the Court found that not only did Mr. Stephenson own the physical hard drive, but as the project’s executive producer, he was also seen as the first owner of the drive’s content. However, Justice Stephane Jackson-Haisley did not designate Mr. Stephenson as the only owner of the masters but left room for the possibility that he was a co-owner of the masters, along with Droop Lion and Toots.


So, why did the court decide in Mr. Stephenson’s favour? Firstly and most importantly, the judge relied on the wording of Jamaica’s Copyright Act. The Act explains that the executive producer should be considered the first owner of a work and its content. To decide who is the justified executive producer, the judge relied on defining the true ‘visionary’ of the project. That individual is ‘described as the person with the vision, the individual who conceptualised the project and therefore the person by whom the arrangements necessary for the making of the album were undertaken.’ Since Mr. Stephenson was found to be the true executive producer by the court, it therefore means that he is also the owner of the album content on the hard drive at issue.


Along with the Act, Justice Jackson-Haisley also looked at previous cases from the United Kingdom, with similar facts. They lay out that all contributors have some claim to ownership of a project, which they worked on. However, the court finds it important to highlight that by collaborating on this project, they understood that ‘they mutually understood their separate roles and responsibilities,’ and should then understand what does and does not belong to them. And because of this, the Hibbert estate is not able to claim that all of the works and content on the drive belonged exclusively to Toots. Further to that, the court emphasised that because Mr. Hibbert made such an effort to be part of this project before his death, he must have impliedly given his permission for his previously recorded sounds to be used. The court found that because Toots gave that permission, his estate can’t now take that permission back to claim it as their property.

So what does this mean for you?
There are a number of different takeaways from the outcome of this case, depending on your role in a project. Producers, artistes, managers, engineers, etc will all have different lessons from the judgement, but it still serves as an overall ‘wake-up call’ for all. No matter the role played in creating a project, everyone should ensure their portion of the content ownership is established early on.


For producers, for example, it is important to keep detailed records and receipts to rely on, if needed. Keep receipts of payment for studio time, musicians, vocalists, engineers, equipment, etc. to use as evidence if needed. If possible, communicate with project participants by email and save your correspondence. Don’t be caught unprepared if and when your role and contribution to a project is questioned.


Along with producers, there are also multiple lessons that can be learned by artists. For starters, if you are the visionary behind a project then you have to make an effort to protect your art by establishing some ownership. Make it clear from the outset of working with a producer that you expect to own the master at the end of the day. Have the difficult conversations and save your receipts!


At the end of the day, music is a business. Work with your team to communicate clearly, get receipts and keep receipts to head off disputes down the road.

– Leah Goldson and Sarah Hsia

Disclaimer: The views expressed in this article are those of Rockstone Legal and do not constitute legal advice.

Coryright © 2022. All Rights Reserved

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News

6 Tips for Influencers

By on

October 22, 2021

- News

Companies and brands are increasingly seeing the value in engaging social media personalities and content creators to help promote their products and services, even on a small scale. If you have even tens of thousands of engaged followers, you may be an attractive candidate for an influencer deal. But while you have built your social media account through a certain kind of content and interaction with your followers – what companies and brands want and demand from you can lead to disputes or disappointment if communication is not clear or if your obligations are overwhelming. So here are some things to pay attention to, in order to make sure that your collaboration is a success:






Number of Posts and Type of Posts





Review these obligations carefully – how many posts are you required to make, how frequently, and on what platforms? For Instagram, are they story posts or feed posts? Do they require you to use a feature like “swipe up” (and do you have access to that feature)? Even an experienced influencer with a team in place to assist can get overwhelmed by posting requirements if they are too frequent or involved – so it’s important to understand exactly what is required – and think about whether it is too much for you. Also: watch out for the term “bi-weekly” – it can mean twice a week or twice a month.






Content





Who provides the content for the posts? Does the company provide images? Text? Or do they want User Generated Content (UGC) for a more organic feel? Posting or reposting content created by the company can be easier, but if the posts are not in your style or voice, they will be less effective or may affect your own brand. On the other hand, good quality UGC can take time and energy to create – not to mention location, wardrobe, hair, and makeup! And if you are required to make posts featuring a certain product, make sure that the company is required to provide you with enough product to make your posts. Sometimes these influencer agreements are a scam: they “hire” you to make posts, but you are required to buy their product in order to do so!






Duration of Posts





How long do you need to leave the posts up? Can you delete them? Nothing is forever: you likely curate your social media accounts to maintain an engaged audience the same way a store or a gallery chooses what is on display. Make sure that you have the freedom to delete posts after a certain amount of time if you want to so that your page doesn’t become one big advertisement for the company.






Tags





Are you required to post any tags (e.g., #ad #sponsoredpost #companyname #campaignname)? Are there tags or disclosures required by government agencies? Make sure you know what you need to include in your posts.















Content Ownership





Who owns your posts (images/video/text) created for the company? Can the company continue to post your content after the term of the agreement has ended? If they have made posts to the company social media account featuring your content, are they required to delete those posts at the end of the term? If you are a producer or artiste, is the company asking for permission to use your song in their marketing campaign? Or do they want to adapt your song as a jingle? Typically, this would require a license agreement separate and apart from the influencer agreement – and depending on the circumstances could require compensation to both composers/songwriters and producers / owners of the master.















Data Tracking





Make sure that you track the engagement with your posts – likes, views, follows, retweets, swipes – whatever the metrics, be prepared to show the company at the end of the term how far your influence extends.










Social Media personalities and Content Creators are in high demand. With a little preparation and organization, your career as a social media influencer can flourish! For more information, or to set up a consultation, give us a call: (876) 855-6676 (JA) or (646) 868-5085 (US).

    

        
        
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