Court of Appeal clarifies joint authorship criteria in Kogan v Martin

John Shaw and Rebecca Wyke (jointly) examine a Court of Appeal decision regarding the authorship of the screenplay for the film Florence Foster Jenkins which included an explanation of the criteria for joint authorship.

The joint authorship case

Julia Kogan v Nicholas Martin & others, [2019] EWCA Civ 1645 for joint authorship.

Background

This case originated as a dispute between professional opera singer Julia Kogan and screenwriter Nicholas Martin over the extent and nature of Ms Kogan’s role in creating early drafts of the screenplay for the 2016 film Florence Foster Jenkins starring Meryl Streep and Hugh Grant. Mr Martin is listed as the sole author of the screenplay and originally sought a declaration to this effect but Ms Kogan counterclaimed seeking recognition as a joint author and associated remedies such as a proportion of Mr Martin’s revenue from the film.

In 2017, the case was heard at the Intellectual Property Enterprise Court (IPEC). The result was that HH Judge Hacon rejected Ms Kogan’s claims holding that Mr Martin was the sole author of the screenplay and Ms Kogan’s role did not go beyond providing relevant industry jargon, useful criticism and some minor plot suggestions. It was also held that because Ms Kogan only contributed to the earlier drafts of the screenplay, it followed that she could not be a joint author of the final version.

The Appeal

An appeal was brought on the basis that the trial judge had misapplied the law in relation to joint authorship, had not placed sufficient weight on the contributions made by Ms Kogan and had erroneously allowed the arguments that because Ms Kogan did not contribute directly to the final version she would not be a joint author and because Mr Kogan had the final say he was the sole author.  During the hearing, the Court of Appeal considered the law on joint authorship of copyright works which provides that there are four elements to a work of joint authorship (a) collaboration, (b) authorship, (c) contribution and (d) non-distinctness of contribution.

A detailed analysis of each element was undertaken by the Court of Appeal who concluded that the following factors should be considered when looking at joint ownership:

• (1) The nature of the collaboration;
• (2) Collaboration will be found where there is an undertaking to jointly create something with common design as to the work’s general outline;
• (3) Derivative works (e.g. where someone provides only editorial corrections or critique) do not qualify;
• (4) In determining collaboration, it is never enough to simply ask “who did the writing“;
• (5) The contribution must be authorial in the way they have contributed a significant amount to the creation of the work (but not necessarily restricted to who fixed the work in writing);
• (6) Contributions that are not authorial do not count;
• (7) The Infopaq test (i.e. whether the author has contributed elements which expressed that person’s own intellectual creation) is to be used when questioning what is enough to constitute a contribution;
• (8) The contribution of a proposed joint author must not be distinct;
• (9) There is no requirement for the authors to have subjectively intended to create a work of joint authorship;
• (10) Having a final say on what goes into the work may have relevance to whether collaboration is found, but is not on its own conclusive;
• (11) Shares of joint authorship do not have to be equal but can reflect their contributions.

The Court went on to explain that HHJ Hacon had adopted an erroneous approach to the evidence during the 2017 IPEC hearing. It was found that the Judge had failed to make important findings of primary fact, failed to take account of material matters and applied incorrect legal standards to the assessment of sufficiency of Ms Kogan’s contributions to the screenplay.  On this basis, the appeal was allowed and a retrial before a different judge was ordered.

Comment on joint authorship

The guidance provided by the Court of Appeal is instructive and all authors, particularly those working in the digital environment, should be aware of the criteria set out to determine joint authorship. It is important to note that the work of joint authors does not need to be equal which may be significant for minor joint authors whose contributions might not have previously been attributed. In the case of a screenplay, an individual who did commit the actual words to paper, but came up with storyline, plot points or characters may still have a case for succeeding in a joint authorship claim.  A careful analysis of the type of contribution is likely to reveal whether a work is one of joint authorship or not.

Speak to our intellectual property experts for advice on this or other matters.

This article has been co-written by Rebecca Wyke and John Shaw.