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20 December 2017

Understanding joint authorship

When does helping someone with a creative project give you a claim to joint authorship over the end result? Is it enough to provide ideas and feedback, or is a more substantial contribution required? These were the questions at issue in a recent dispute over the authorship of the screenplay for the 2016 film Florence Foster Jenkins.

The film followed Florence Foster Jenkins, a New York socialite and amateur soprano who became infamous in the 1940s for her poor singing voice. Nicholas Martin was credited as the sole author of the screenplay. Mr Martin had produced initial drafts of the screenplay while he was living with his then-partner, Julia Kogan. Mr Martin is a professional writer of film and television scripts, while Ms Kogan is a professional opera singer. Mr Martin sought a declaration that he was sole author of the screenplay, and Ms Kogan claimed that her contributions to the screenplay meant that she should be declared joint author.

Establishing joint authorship

The judge set out the key elements of the test for joint authorship, namely (1) genuine collaboration in the creation of the work, (2) each author having made a contribution which is not distinct from that of the other author(s), and (3) the contribution must have been sufficient.

Was there Collaboration?

In this case, the final screenplay was completed by Mr Martin after he and Ms Kogan had split up. This was problematic for Ms Kogan's case, as 'collaboration' requires common design by the authors at the time the relevant work was created. The court said that this common design was not possible as Ms Kogan had not had any input beyond the third draft of the screenplay: the final version was written after the end of her relationship with Mr Martin. Ms Kogan pointed to her contributions to the first three drafts, arguing that she had consented to their use by Mr Martin in the final version and that this, surely, made her a collaborator. The court rejected this argument, concluding that mere consent to the use of one's previous work does not constitute collaboration – there must be acts of co-operation at the time of the creation of a work which lead to its creation. Ms Kogan therefore failed to meet this requirement.

Was there a sufficient contribution?

Mr Martin highlighted the fact that he had had the final say over what material was included into any draft scripts, arguing that this should be enough to prove that he was the sole author. The court disagreed, acknowledging that one party being the ultimate arbiter of the script's content should be taken into account but that it was not conclusive in itself.

Nevertheless, the judge found that Ms Kogan had not made a sufficient contribution to the screenplay. The key issue to be decided in this respect was whether Ms Kogan's contribution constituted a substantial part of the whole screenplay, in such a way that her contribution would be protected by copyright in the work. In other words, if her contribution alone were copied, would that amount to infringement of copyright in the screenplay as a whole? This necessarily involves a qualitative as well as quantitative assessment.

Ultimately, it is not sufficient merely to amend or provide feedback on someone else's work; the contribution must be an expression of the purported joint author's own intellectual creation. General ideas or minor suggestions are not enough. As such, the judge concluded that the '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'.

Key points to note

For authors, this case provides reassurance that asking for feedback and suggestions from friends and colleagues will not in itself undermine your claim to being the sole author of your work. For collaborators, this case serves to underline the importance of making your role clear throughout the process if you consider yourself to be a joint author.

This article was written by Leo Michelmore. For more information, please contact Leo on +44 (0)20 7438 2115 or at