How much is enough for joint authorship? Martin v Kogan

An IPEC judgment in November rejected a claim to joint authorship of a screenplay.

The film Florence Foster Jenkins starring Meryl Streep and Hugh Grant and directed by Stephen Frears was released in 2016.

Nick Martin was credited as the sole author of the screenplay but Julia Kogan claimed to be a joint author of the screenplay and sought a proportion of Mr Martin’s income from the film.  Mr Martin is a professional writer of film and television scripts.  Ms Kogan is principally a professional opera singer.  Mr Martin and Ms Kogan lived together as partners during the period in which the idea of the film arose and when treatments and early drafts of the screenplay were written. Subsequently, the relationship broke down irrevocably.  It was accepted that the couple frequently discussed the Florence project.


The law on joint authorship

The Copyright, Designs and Patents Act 1988 sets out two express requirements for joint authorship: (1) the work must have been produced by the collaboration of two or more authors and (2) the contribution of each author must not be distinct from that of the other author(s).  For example, adding a scene to an existing play would not constitute the author of the additional scene a joint author of the play unless there had been some collaboration and common design at the time the copyright work was created.

There is an implied third requirement.  To be a joint author, a collaborator must contribute a significant part of the skill and labour protected by the copyright.  Suggestions from a putative joint author as to how the main author should exercise his or her skill – for instance by way of criticism or notes provided to a writer by a director or producer or editing a literary work – will not lead to joint authorship where the main author has the final decision as to the form and content of the work.

If, though, an individual were to create the entirety of the plot of a novel or play and all the characters featured in it, and a collaborator were left to do the writing with discretion as to wording, such that the collaborator is not merely a scribe, the resulting work is likely to be a work of joint authorship.


Were the contributions by Ms Kogan sufficient to maker her a joint author?

Ms Kogan claimed to have written substantial parts of a number of scenes in the film either herself or jointly with Mr Martin, and to have contributed “vocally technical language” and ideas as to individual musical artists and works included in the film.

There was some evidence to support Ms Kogan’s claim that the screenplay was written jointly with Mr Martin.  By contrast there was more telling evidence which suggested that the first three drafts of the screenplay were written by Mr Martin alone, with minor assistance from Ms Kogan.

The judge found that the weight of the evidence supported Mr Martin’s claim to have been the sole writer of the drafts of the screenplay with only limited input from Ms Kogan, which consisted of musical expressions of a technical nature, along with helpful criticism and some minor plot suggestions.  This input was insufficient to qualify Ms Kogan as a joint author of the screenplay.  Mr Martin was entitled to a declaration that he was the sole author of the screenplay.

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