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Court of Appeal guidance on works of joint authorship

Posted on 04 November 2019

In an unusual outcome, the Court of Appeal has sent a case (Kogan v Martin) back for re-trial in the Intellectual Property Enterprise Court (IPEC). The case concerns the 2016 film Florence Foster Jenkins, starring Meryl Streep as the eponymous wealthy American music loving socialite who dreamed of becoming a great opera singer, but without any real talent.  The issue was whether there was a sole author and owner of the copyright in the screenplay (Mr Martin) or whether there were in fact joint authors/owners (Mr Martin and Ms Kogan). 

The Court of Appeal overturned the IPEC's decision on a number of grounds, including the Judge's erroneous approach to the witness evidence in the case (which led him to fail to make findings of fact on key issues) and for imposing too high a threshold for determining whether Ms Kogan had made a sufficient contribution.  The Court of Appeal usefully set out the appropriate factors to consider in a claim of joint authorship.  Whilst the parties will now face a retrial, the Court of Appeal appears to consider that Ms Kogan had done enough to maintain her claim: "we consider that it is entirely realistic to suppose 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. It would be wrong for us to go any further in the light of the disposition of the appeal which we will propose".

Background

Mr Martin argued that Ms Kogan's role was limited to encouragement and support, sounding board/criticism, editing and providing information on the New York music scene of the time, and that she had not suggested scenes, characters or sequences or contributed in any way to the construction of the film's structure.  Ms Kogan's account meanwhile was very different, namely that she had made a significant contribution to many aspects of the screenplay, including the original idea, characters, story and dialogue. Whilst she accepted that Mr Martin was the main writer, and that he had the final say as to what went into the screenplay, she described the process a creative collaboration in which she participated as partner.

At trial, the IPEC judge found that Mr Martin was sole author of the copyright in the screenplay.  He concluded that Ms Kogan's contributions were not sufficient for her to qualify as a joint author as they did not rise "above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions". 

The Court of Appeal's guidance on joint authorship

Under the Copyright, Designs and Patents Act 1988, a work may be one of joint authorship where it is produced by the collaboration of two or more authors and the contribution of each author is not distinct from that of the other author/s. 

There are four elements:

  1. Collaboration
  2. Authorship
  3. Contribution
  4. Non-distinctness of contribution

Having reviewed the previous case law on these issues, the Court of Appeal drew together the following eleven principles for assessing a claim of joint authorship, under each of these four headings:

Collaboration

  1. A work of joint authorship is a work produced by the collaboration of all the people who created it.
  2. There will be a collaboration 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.
  3. Derivative works do not qualify.  If one of the putative authors provides only editorial corrections/critique, or ad hoc suggestions of phrases or idea, without wider collaboration, this will also not qualify.  So, for example, in Beckingham v Hodgens, a session musician who contributed a distinctive four bar riff to a song was able to make a successful claim for joint authorship. 
  4. It is never enough to ask 'who did the writing?'.  Authors can collaborate in many different ways.

Authorship

  1. Joint authors must be 'authors' in the sense that they must have contributed a significant amount of the skill which went into the creation of the work.  Again, this means looking beyond who 'held the pen'. 

Contribution

  1. Only 'authorial' contributions in this sense will count, and this will be acutely sensitive to the nature of the copyright work. For example, in a case concerning software, a person who laboured extensively in setting the specification and in correcting errors and bugs was not a joint author with the person who wrote the code.
  2. Whether a contribution is sufficient will be assessed by reference to the standard set out in the Infopaq test for originality, namely whether the putative joint author has contributed elements which express their own intellectual creation, exercising free and creative choices.

Non-distinctness of contribution

  1. The contribution must not be distinct (if it were, the authors would be separate authors of their individual contributions).
  2. There is no further requirement that the authors subjectively intended to create a work of joint authorship.
  3. It may be relevant that one of the authors has the final say on what goes into the work (as occurred in this case), but this will not be conclusive.
  4. The respective shares of joint authors do not need to be equal and can reflect the relative amounts of their contributions.

Having set out the principles to be considered, the Court of Appeal considered it appropriate to refer the case to be determined again.  In particular, it rejected the IPEC Judge's "novel theory" that the significant of a contribution depended upon the type of skill employed in making that contribution.  The IPEC Judge distinguished between primary skills required to create a copyright work (in relation to a literary work, this would be the selection and arrangement of words in the course of setting them down) and other secondary skills (e.g., inventing plot and character).  Whilst the Judge had disclaimed reliance on a distinction between such skills for the purpose of assessing joint authorship, he did propose a "high bar" for contributions of plot and character.   Leaving on one side the fact that the screenplay was more accurately described as a dramatic work, the Court of Appeal thought such  distinction between primary and secondary skills was "positively unhelpful" as it would imply that less weight should be given to ideas than to written words, when in fact both are essential components of a copyright work.  Indeed, the Court of Appeal confirmed, the arrangement of situation and plot, and character development, can be "of the essence of a literary or dramatic work".

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