Court of Appeal summarises law of joint authorship - Kogan v Martin

United Kingdom

The Court of Appeal recently delivered its judgement in the case of Kogan v Martin [2019] EWCA Civ 1645 concerning joint authorship of copyright works. In his judgment, Lord Justice Floyd took the opportunity to review the existing authorities and provide helpful guidance on the law of joint authorship, summarising the position in 11 key requirements.

Background

Nicholas Martin, the credited writer of the screenplay for the film Florence Foster Jenkins (released in 2016), brought a claim in the IPEC seeking a declaration from the court that he was the sole author of this screenplay. During the time that the first drafts of the screenplay were written, opera singer Julia Kogan was romantically involved with Mr Martin and the pair lived together, separating before the final draft was completed. Ms Kogan argued that she was a joint author of the screenplay in light of the contributions which she had made and sought a declaration as such.

At first instance in the IPEC, the Court held in Mr Martin’s favour, deciding that Ms Kogan’s input was insufficient to qualify her as a joint author of the screenplay. Ms Kogan appealed this decision on a number of grounds.

Appeal

The Court of Appeal allowed the appeal, concluding that the judge at first instance had adopted an “erroneous approach to the evidence” and “applied incorrect legal standards to the assessment of the sufficiency of Ms Kogan’s contributions”. The court therefore set aside the first instance judge’s declarations and ordered a retrial in the IPEC.

Joint Authorship

What is interesting for copyright practitioners is the practical guidance provided in this judgement on the law of joint authorship. LJ Floyd conducted a review of the existing authorities, considering each of the four requirements of joint authorship (collaboration, authorship, contribution and that contributions must not be distinct – section 10(1) CDPA 1988) and providing clarification where necessary. Following this review, LJ Floyd summarised the 11 key requirements of joint authorship at [53] as follows:

  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. Works where one of the putative authors only provides editorial corrections or critique... do not qualify. Ad hoc suggestions of phrases or ideas... do not qualify.
  4. In determining whether there is a collaboration to create a literary or artistic work it is never enough to ask "who did the writing?"... For example there may be joint authorship if one person creates the plot and the other writes the words...
  5. 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... The statutory concept of an author includes all those who created, selected or gathered together the detailed concepts or emotions which the words have fixed in writing.
  6. Contributions which are not "authorial" in the above sense do not count...
  7. The question of what is enough of a contribution is to be judged by the Infopaq test, i.e. whether the putative joint author has contributed elements which expressed that person's own intellectual creation. The essence of that term is that the person in question must have exercised free and expressive choices. The more restrictive the choices the less likely it will be that they satisfy the test.
  8. The contribution of a putative joint author must not be distinct.
  9. There is no further requirement that the authors must have subjectively intended to create a work of joint authorship.
  10. The fact that one of the authors has the final say on what goes into the work may have some relevance to whether there is a collaboration, but is not conclusive...
  11. It follows that the respective shares of joint authors are not required to be equal, but can reflect, pro rata, the relative amounts of their contributions.

Comment

This judgment provides a helpful restatement of the law on joint authorship, which is surely to be welcomed by practitioners in what is considered a relatively unclear area of law.

It is of particular interest that the court rejected the first instance judge’s distinction between primary and secondary skills in assessing the level of contribution. The court considered such a distinction to be “positively unhelpful” in relation to dramatic works, such as this and that the same was implying that less weight should be given to ideas than to written words when “both are essential components of the work”. Many potential authors may breathe a sigh of relief as it appears to have been clarified that those who, despite not holding the pen, contribute substantial plot and character developments, do not have to meet a higher threshold of contribution by virtue of the ‘secondary’ nature of their contributions.

Whilst the court did not make any final determination in relation to joint authorship, LJ Floyd provided a notion of support for Ms Kogan’s case stating: “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 remains to be seen if the IPEC agrees.

The full judgement can be found here.

Article co-authored by Francesca Gough.