When is a work a joint work? Pamela Brighton (‘PB’), the director of the original (1996) production of the play “Stones in His Pockets“, claimed to be its author jointly with Marie Jones (‘MJ’), the accredited author both of that play and of its later (1999) incarnation, which was a huge success in the West End and elsewhere. The position was complicated, as MJ’s original version of the play was itself based in part on an earlier script drafted by PB.
The Copyright Act defines a work of joint authorship as “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(s).” It was for PB to establish the original play as a work of joint authorship as MJ had been widely accredited as sole author without previous objection from PB.
In a judgment handed down on 18 May* Mr Justice Park set out three considerations suggested by case law as being relevant to the question of joint authorship:
The contribution of a joint author has to be ‘significant’, although not necessarily of the same magnitude as the contributions of the other joint author(s);
- The contribution must be a contribution to the creation of the work (rather than, for example, to the interpretation of it); and
- If the creator’s words are physically written down by someone else on the creator’s behalf, this will not prevent the creator being a joint author.
- It was suggested that the work undertaken by PB, particularly during the rehearsal process, went beyond what was expected of a director and amounted to a significant and original contribution to the creation of the final play, even though the actual ‘writing’ (typing in this case) had been undertaken by MJ. On the facts, the judge found against PB. Round One to MJ.
PB also claimed that her first draft of a proposed script for the opening scenes of the play was itself a separate copyright work (the judge found that it was) and that although elements of it had been copied in MJ’s script for the 1996 production with PB’s implied consent, no such consent had been granted in respect of the script for the 1999 production and, accordingly, PB’s copyright had been infringed.
In considering this claim the judge emphasised that, although copyright does not exist in an idea, a work can be ‘copied’ for copyright purposes without repeating a single word of the original (‘altered copying’). Having established that MJ had read PB’s original script and having identified in MJ’s script for the 1996 production a number of elements of the storyline (if not the actual words) from PB’s original script, copying was established. It was common ground that an implied licence for that copying had been granted. Given that the 1999 script was derived from the 1996 version, which in turn was derived in part from PB’s original version, was that implied licence sufficient to cover the use in the 1999 version without further reference to PB? The judge came to the conclusion that the original implied licence was sufficient.
An implied licence granted without payment or other ‘consideration’ (as in this case) can be terminated on reasonable notice. The judge found that such a notice was implicit in the ‘letter before action’ sent by PB’s solicitors to MJ before commencing proceedings in November 2001. The effect of the termination of the implied licence as of that date was that whilst agreements entered into by MJ before that date in respect of the exploitation of the 1999 version could not be overturned, any subsequent agreements for exploitation of that work would require PB’s consent.
So whilst, on the face of it, the spoils go to MJ, PB has been handed a powerful weapon in the form of a veto over further exploitation of her original script (except under agreements concluded before November 2001) whether as part of either of the existing versions of the stage play or otherwise. However, the judge does not appear to have closed the door on further argument as to the extent to which it would be right for PB to be restricted in exercising her new-found rights to MJ’s detriment. Perhaps the balance might yet be redressed.
Whilst this case concerned primarily rights in relation to a dramatic work, the principles might just as easily apply to the evolution of a film or television script, a novel or a musical composition. There are lessons to be learned by all involved in the creation and exploitation of copyright works, not only with regard to the nature of copyright when two or more authors are involved, but also as to the extent to which a work may be copied without actually reproducing any part of its physical manifestation and the potential scope of an implied licence to exploit a work. Yet again the desirability of the parties entering into clearly drafted written agreements at the outset has been illustrated.