Olivia O'Kane

In Julia Kogan v Nicholas Martin & others [2019] EWCA Civ 1645, a dispute arose over the authorship of the screenplay for the film Florence Foster Jenkins, released in 2016. The film was a massive success, starring Meryl Streep and Hugh Grant, and grossed approximately $56 million.

The first named defendant in this case, Mr Nicholas Martin, initially sought a declaration that he was the sole author of the screenplay. Ms Kogan counterclaimed seeking recognition as a joint author and thus a joint owner of the copyright. She went on to claim that her copyright had been infringed by Mr Martin, his company and a number of film companies.

This case was first held in 2017 in which HHJ Hacon declared Mr Martin to be the sole author and owner of this copyright. Ms Kogan appealed this decision before Lord Justice Floyd in May 2019.

Background

Mr Martin was a professional writer of film and television scripts. The plaintiff, Ms Kogan, was a professional opera singer with a creative background having written three children’s books as well as two theatre/music projects. The pair began a romantic relationship in October 2011 and lived together from February 2012 until March 2014 when Ms Kogan moved out.

It was alleged that during their relationship that the idea for a film about Florence Foster Jenkins first arose. The court of first instance explored the contributions of both parties, with both parties providing very different accounts as to how the film came to be. There was much debate regarding the weight of contribution of research, character development and script writing. It was accepted by both parties that Ms Kogan only contributed to the first three drafts of the screenplay.

HHJ Hacon dismissed the claim and held that each draft was a separate copyrighted work and as there was no collaboration on the final draft, there was no joint authorship. HHJ Hacon concluded that “the textual and non-textual contributions made by Ms Kogan never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions. Taken together they were not sufficient to qualify Ms Kogan as a joint author of the screenplay, even had those contributions all been made in the course of a collaboration to create the screenplay.”

Appeal: Joint Authorship Criteria Clarified

Section 10 (1) of the Copyright, Designs and Patents Act 1988 governs works of joint authorship. It provides that a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors. The four elements of joint authorship are thus (1) collaboration, (2) authorship, (3) contribution and (4) distinctness of contribution.

After a thorough review of the case law in this area, the Court of Appeal firmly rejected the lower court’s conclusion and provided the following:

1. There is no requirement that the authors must have intended to create a work of joint authorship.
2. There is no requirement that a joint author must show involvement in the final draft of work.
3. The distinction in which HHJ Hacon made in his judgment between the different levels of skill utilised by the parties was “positively unhelpful”.

Further to this, the Court of Appeal provided the following guidance on establishing joint authorship:

• A work of joint authorship is a work produced by the collaboration of all the people who created it.
• There will be a collaboration where those people undertake jointly to create the work with a common design as to its general outline, and where they share the labour of working it out. The first task for the court in such a case is to determine the nature of the co-operation between the putative joint authors which resulted in the creation of the work.
• Works where one of the putative authors only provides editorial corrections or critique, but where there is no wider collaboration, do not qualify.
• In determining whether there is a collaboration to create a literary or artistic work it is never enough to ask “who did the writing?”. Authors can collaborate to create work in many different ways. For example there may be joint authorship if one person creates the plot and the other writes the words, or if either or both of these types of labour is shared.
• Joint authors must be authors, in the sense that they must have contributed a significant amount of the skill which went into the creation of the work.
• Contributions which are not “authorial” in the above sense do not count. What counts as an authorial contribution is acutely sensitive to the nature of the copyright work in question.
• The question of what is enough of a contribution is to be judged by the test found in Infopaq. This required that the person must have exercised free and expressive choices. The more restrictive the choices the less likely it will be that they satisfy the test.
• The contribution of a putative joint author must not be distinct.
• There is no requirement that the authors must have subjectively intended to create a work of joint authorship.
• While the fact that one of the authors has the final say on what goes into the work may have some relevance to whether there is a collaboration, this is not conclusive. Instead, the author with the final say must be given credit in deciding on the relative proportions of ownership, for the extra work involved in making those choices.
• It follows that the respective shares of joint authors are not required to be equal, but can reflect, pro rata, the relative amounts of their contributions.

This guidance will be welcomed by many minor joint authors whose contributions may have been unfairly overlooked. With such a stark turnaround from decision to appeal, it will be interesting to see how judges consider this relationship going forward.

• Olivia O’Kane is a partner and head of media and entertainments at Carson McDowell.