How much is enough for copyright joint authorship: Martin v Kogan: The Re-Trial

This long-running dispute concerned the authorship of the screenplay for the 2016 operatic bio-pic “Florence Foster Jenkins”, starring Meryl Streep and Hugh Grant, which generated over £33 million at the box office and earned Streep an Oscar nomination for Best Actress. A recent High Court re-trial in the Intellectual Property Enterprise Court (IPEC) has determined that the screenplay was a work of joint authorship.

In 2017, Nick Martin sought a declaration that he was the screenplay’s sole author. IPEC rejected Julia Kogan’s counter-arguments that she was a joint author. She was principally an opera singer, but she introduced Martin, a professional script writer, to the life-story of Florence Foster Jenkins, as well as contributing characters and dialogue to various drafts of the screenplay.

In 2019, the Court of Appeal set aside the 2017 IPEC judgement and ordered a new trial to take place, holding that “a reconsideration of all the evidence would show that Ms Kogan’s contribution was indeed made as part of a collaboration and passed the quantitative threshold for joint authorship.”

A work of joint authorship means a work produced by the collaboration of two or more authors, 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.

It is never enough to ask “who did the writing?” Authors can collaborate to create a work in many different ways. For example, there may be joint authorship if one person creates the plot and another person writes the words, or if either or both of these types of labour are shared. Joint authors must be authors, in the sense that they must have contributed elements which express their own intellectual creation by way of exercising free and expressive choices. 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.

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. Ad hoc suggestions of phrases or ideas where there is no wider collaboration do not qualify.

The new trial took place in December 2020. The court considered six key parts of the screenplay which had been put forward by the parties as the most significant contributions Kogan had made and found that the screenplay was a work produced in collaboration by Martin and Kogan.

The court then had to quantify their respective contributions. There is a legal presumption in favour of equal shares as between joint authors, but that is a matter which has to be determined on the facts of the individual work. There can be circumstances where the court is unable to reach any conclusion other than equal shares, but in this case, unequal shares were deemed to be justified. Kogan’s contribution was calculated at 20%.

So, where does this leave film producers and distributors? In this case, they were able to demonstrate that Kogan knew they believed they could freely utilise the screenplay and Kogan was not granted any financial relief against the companies, as long as they paid her 20% of anything owing to Martin in the future. Further, Kogan was prevented from inhibiting the film’s distribution or withdrawing her consent to the commercialisation of the film. The judge made it clear that the film companies had not infringed Kogan’s copyright. The film companies were concerned that this finding would make it more difficult to rely on writers’ warranties and would open the way for disputes in the future. The court was not convinced. The judge said their concern was “misplaced. This is a decision on the facts.”

This dispute and its trio of trials highlights the complicated assessments that can accompany creative works borne out of collaborative efforts. Whilst the re-trial and the earlier 2019 Court of Appeal ruling provide useful guidance as to the factors to be considered if contributors to a copyrighted work are legally joint authors, and, therefore, joint copyright owners, the verdict is a fact-specific finding with an admittedly “broad-brush” approach to ownership shares. Whilst it remains to be seen how influential this will be on future authorship disputes, professionally drafted intellectual property licences and assignments remain the primary form of recommended protection for film and television producers working with contributors on collaborative projects.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.