consider your emails before you send them - what they truly are. If you see
them as non-substantive notes on electric paper, bound only by the monitor and
without the consequences of tangible print, big mistake! It's best to remember
that the four-corners of your inbox can be analogous to the four-corners of a
contract. This was made apparent in a recent decision from the 11th
In Hermosilla v. Coca-Cola Co., 2011 U.S. App. LEXIS
22241 (11th Cir. Fla. Nov. 3, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law],
the 11th Circuit determined that Rafael Vergara Hermosilla's email
constituted a contract to assign his copyright interest in a song's adaption.
Coca-Cola contacted Jose Puig of Universal Music Latin
America to produce the Spanish version of a song. Puig
sought advice from Rafael Artero of Universal Music Publishing Group, and Artero
recommended Vergara, who had a contract with Universal Group.
the song into Spanish, but a dispute arose regarding Vergara's credit and his "adapter's
share" of the profits. Vergara emailed Puig:
[B]ecause I am a man of my
word and honor, that is not moved by economic motives, my only request is that
my credits are respected as producer and adapter of the Spanish version (that
every time the name of any composer of this version appears, my name appears as
adapter), and obviously the credits for the production that are detailed in the
invoice sent for this production, which I have detailed below.
For the adaptation, you may
consider it a work for hire with no economic compensation to that respect. I
believe what's legal is a dollar.
I hope that this leaves
clear what my work was and what my good intentions were from the beginning.
Puig responded with an email stating:
Rafa, we are aware of your
goodwill from the beginning, and most of all, we are aware of how hard you had
to work given the little time we gave you. You can count on the credits on the
track. I am resending you the contract.
Universal Group later
assigned its copyright in the adaptation to Coca-Cola. In the contract,
Universal stated that it had acquired the copyright from Vergara.
sued Coca-Cola for copyright infringement. It was determined that Vergara
entered a contract to assign his copyright interest in his adaptation to
Universal. Vergara agreed to sell his rights to the lyrics for a dollar so long
as he received credit for his contribution, and Puig accepted that condition of
sale on behalf of Universal. The 11th Circuit held that:
the record establishes without dispute that Vergara
assigned his copyright interest to Universal. Under Florida law, parties enter
a contract when "there was a definite proposal by one party which was
unconditionally accepted by the other." To make this determination, a
reviewing court must "place itself in the situation of the parties, and
from a consideration of the surrounding circumstances, the occasion, and
apparent object of the parties, . . . determine the meaning and intent of the
language employed." Vergara stated in his email on March 4, 2009, that his
"only demand" to assign his copyright interest was that he receive
credit as the adapter and producer. Puig "unconditionally accepted"
that condition in his email on March 5, 2009, in which he told Vergara to
"count on the credits on the track." Puig's acceptance on behalf of
Universal was effective to create a contract with Vergara because it "match[ed]
the terms of [his] offer." The two emails were "so connected with
each other that they may be fairly said to constitute . . . a complete contract."
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