Court Of Appeal Revisits Joint Authorship – Need To Ask More Than Who Did The Writing

Kogan v Martin and others [2019] EWCA Civ 1645

In a case concerning the authorship of the screenplay for a 2016 film, the Court of Appeal has allowed an appeal against the decision of the Intellectual Property Enterprise Court (IPEC) which decided that the first respondent was the sole author of the work. In doing so, the Court of Appeal shed light on the test for joint authorship.

Background

The appeal relates to a dispute that arose over ownership of the screenplay for the film "Florence Foster Jenkins". The film follows the story of an American socialite who saw herself as a talented operatic soprano, when in fact her fame arose due to her poor singing voice.

The first respondent, Mr Martin, was credited with and claimed sole authorship of the screenplay arguing that the appellant, Ms Kogan, merely introduced him to the story and provided minor suggestions. Ms Kogan, a professional opera singer, argued joint authorship, asserting that her role was a creative and collaborative one and that she worked closely with Mr Martin on the drafts of the screenplay. Mr Martin denied Ms Kogan's assertion that she assisted in introducing characters and scenes to the story. Ms Kogan and Mr Martin were in a romantic relationship when the majority of the drafts were written. Mr Martin produced the final draft after their relationship had ended.

Initial proceedings

Charles Russell Speechlys produced an article setting out the findings of the initial proceedings in 2017, which you can read here.

Decision of the Court of Appeal

The Court considered the four established elements of joint ownership, as enshrined in section 10(1) of the Copyright, Designs and Patents Act 1988:

Collaboration; Authorship; Contribution; and Non-distinctness of contribution. The Court undertook a detailed analysis of the law and concluded that there were 11 factors to consider when determining joint authorship:

A work of joint authorship is a work produced by the collaboration of all the people who created it. 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. 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. In determining whether there is a collaboration to create a literary or artistic work it is never enough to ask...