Court of Appeal Revisits Joint Authorship – Need to Ask More than Who Did the Writing
Kogan v Martin and others  EWCA Civ 1645
In a case concerning the authorship of the screenplay for a 2016 film, the Court of Appeal has allowed an appeal against the decision of the Intellectual Property Enterprise Court (IPEC) which decided that the first respondent was the sole author of the work. In doing so, the Court of Appeal shed light on the test for joint authorship.
The appeal relates to a dispute that arose over ownership of the screenplay for the film “Florence Foster Jenkins”. The film follows the story of an American socialite who saw herself as a talented operatic soprano, when in fact her fame arose due to her poor singing voice.
The first respondent, Mr Martin, was credited with and claimed sole authorship of the screenplay arguing that the appellant, Ms Kogan, merely introduced him to the story and provided minor suggestions. Ms Kogan, a professional opera singer, argued joint authorship, asserting that her role was a creative and collaborative one and that she worked closely with Mr Martin on the drafts of the screenplay. Mr Martin denied Ms Kogan’s assertion that she assisted in introducing characters and scenes to the story. Ms Kogan and Mr Martin were in a romantic relationship when the majority of the drafts were written. Mr Martin produced the final draft after their relationship had ended.
Charles Russell Speechlys produced an article setting out the findings of the initial proceedings in 2017, which you can read here.
Decision of the Court of Appeal
The Court considered the four established elements of joint ownership, as enshrined in section 10(1) of the Copyright, Designs and Patents Act 1988:
- Contribution; and
- Non-distinctness of contribution.
The Court undertook a detailed analysis of the law and concluded that there were 11 factors to consider when determining 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.
- Derivative works do not qualify. 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 a work in many different ways.
- 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. Again, it is not correct to focus exclusively on who fixed the work in writing.
- 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 Infopaq test, i.e. whether the putative joint author has contributed elements which expressed that person's own intellectual creation.
- The contribution of a putative joint author must not be distinct.
- There is no further requirement that the authors must have subjectively intended to create a work of joint authorship.
- 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, but is not conclusive.
- 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.
The Court was of the view that whilst HHJ Hacon had correctly stated that contributions which formed part of the creation of the work were not to be ruled out because they are, for example, non-textural, it disagreed that there was a “high bar” for contributions of plot and character, particularly when applied to dramatic works. It also sounded a note of caution in relation to the proposition that an individual’s contribution alone should be looked at to ascertain if it constituted a substantial part of the whole, when it is in the very nature of joint authorship that the contributions of the authors are not distinct. The Court was also critical of the judge’s treatment of the evidence and the unfairness to Ms Kogan’s claim in allowing an unpleaded point (based on collaboration ceasing before the final draft was produced).
The Court acknowledged that there was high authority enjoining appellate courts from becoming involved in a re-assessment of factual findings (particularly in relation to a court such as the IPEC which aims to provide a less complex alternative to the High Court). However, the Court considered that the judge had adopted an erroneous approach to the evidence, 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. On this basis, it ordered a retrial before a different judge.
The work of joint authors does not have to be equal and the individual who did the writing is not the only one with a claim for authorship. Each matter should be looked at on a case-by-case basis in that regard. In the case of a screenplay, an individual who did not lift a pen, but came up with plot, characters and some of the storyline may still have a case for succeeding in a joint authorship claim.
Hope is not lost for minor joint authors.
For more information please contact Ayman Shehata on +44 (0)20 7427 6493 or at Ayman.Shehata@crsblaw.com.