As I will show later, failure to execute a formal assignment would not ipso facto
vitiate the contract.
5. The agreement must be legal.
6. The agreement must not be rendered void either by some common law or statutory
rule or by some inherent defect.
In my view the transaction between the plaintiff and the defendant as regards the
adaptation of the plaintiff‟s musical composition into national anthem does satisfy all the
above requirements.
A commissioned design is one commissioned for money or money‟s worth. In the instant
case, there is evidence of a payment of Shs.2,000/= by the defendant to the plaintiff in
connection with his composition.
In law this amounted to consideration.
Without
consideration, what the parties promised each other remains a nudum pactum („a bare
promise‟) which cannot be enforced through the courts. In all these circumstances, in the
absence of any pleading and proof that the transaction has since been rendered void either
by some common law or statutory rule or by some inherent defect, such as an operative
mistake, court is satisfied that it (the transaction) is legally binding. There was intention
to enter into legal relations and thereby bind themselves to carry out the agreement.
What then is the effect of non-compliance with the law as to transfer of Copyright
ownership?
In Warner vs Gestetner Ltd [1988] EIPR D-89, Warner, an expert in the drawing of cats,
agreed orally to produce some drawings to be used by Gestetner to promote a new
product at a trade fair.
Gestetner subsequently used the drawings for promotional
literature, and Warner complained that this went beyond the agreement and infringed his
Copyright. Warner remained the owner of the copyright in the drawings because it had
not been assigned to Gestetner. However, Whitford J. found that he could imply a term
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