Following a retrial of an Intellectual Property Enterprise Court (IPEC) decision regarding a claim for joint authorship in the screenplay for the 2016 film Florence Foster Jenkins, the IPEC has reversed the earlier judgment and found that the screenplay was a work of joint authorship between the script writer Nicholas Martin and the opera singer Julia Kogan.
This outcome comes as no surprise given the findings of the Court of Appeal which overturned the original IPEC decision, on which we reported here. The Court of Appeal held that the judge at first instance had imposed too high a threshold for determining whether Ms Kogan had made a sufficient contribution to qualify as joint author and set out the factors to consider in a claim of joint authorship.
Applying those factors, at the retrial the IPEC held that whilst a mere idea to make a screenplay about Florence Foster Jenkins would not have been authorial on its own, as Ms Kogan's contribution resided in the “creation, selection and gathering together of detailed concepts and emotions which the words have fixed in writing” that met the threshold of an authorial contribution. Notwithstanding that Mr Martin made the final creative decision, Ms Kogan's contribution reflected the expression of her own intellectual creation, and the couple's respective contributions were not distinct.
The relative amounts of those contributions were the subject of detailed evidence at trial and analysis in the IPEC judgment. The judgment sets out the following principles for approaching the question of apportionment:
- There is a presumption in favour of equal shares as between joint authors.
- Joint authors may provide otherwise by agreement.
- There may be circumstances where the Court is not able to reach any different conclusion than equal shares.
- If circumstances justify a different result than equal shares the Court may so decide, assigning shares pro rata to their individual contributions.
- The decision is a highly subjective one and may be approached on a broad-brush basis.
Assessing the value of the parties' contributions on a qualitative and quantitative basis, and taking an approach which may embolden minor joint authors whose contributions have been previously overlooked, the judge held that Ms Kogan was entitled to a 20% share in the copyright for the screenplay.
There was also a finding of estoppel against Ms Kogan and in favour of the film companies who had optioned the screenplay and financed and produced the film, based in large part on the fact that Ms Kogan belatedly and knowingly asserted her copyright claim only after the companies had made substantial investment in the film. The estoppel had the effect that Ms Kogan could not seek to restrict distribution of the film or assert any further claim for financial relief against the film companies, providing they pay her 20% of any future fees due to Mr Martin.
The judge rejected the film companies' submissions that a finding of joint authorship in favour of Ms Kogan would have a suppressive effect on future investment in screenplays and other authorial works for fear of finding out later that they were actually works of joint authorship. The judge considered that this decision did not establish any new principles which would increase the risk to those investing in authorial works.