The Court of Appeal’s recent decision in the case of Kogan v Martin and others [2019] EWCA Civ 164 has provided some welcome guidance on the law relating to joint ownership of copyright works. 

Background to the case

This case concerned a dispute over who were the authors of a screenplay about the life of Florence Foster Jenkins (FFJ).  FFJ was a wealthy American socialite who lived music and who incorrectly considered herself to be a talented opera singer. 

Mr Martin is a professional writer of film and television scripts and Ms Kogan was principally a professional opera singer but had also authored three children’s books.  Mr Martin and Ms Kogan met in around September/October 2011 and began a romantic relationship.  Mr Martin was apparently intrigued by Ms Kogan’s life as an opera singer and in turn, Ms Kogan was fascinated by Mr Martin’s work as a professional writer.  Mr Martin and Ms Kogan lived together between February 2012 and March 2014 until Ms Kogan moved out of Mr Martin’s flat.  Their relationship continued until October 2014 and the couple remained on relatively good terms until March 2015.

It was common ground between the parties that it was Ms Kogan who introduced Mr Martin to the FFJ’s story and that they both watched a documentary by Donald Collup about FFJ and her life.  It was this documentary that proved an important source of factual information for the screenplay. 

A first draft of the screenplay was written between February and April 2013.  A second draft was completed in June 2013.  In July 2013, Mr Martin travelled to Los Angeles and met with various members in the film industry about the screenplay, amongst them, Ben Lewin, a director, producer and writer of screenplays, and his wife Judi Levine.  When Mr Martin returned to London, work was done to prepare a third draft of the screenplay.  At this time, Mr Martin became concerned that Mr Lewin and Ms Levine would claim a share of the authorship making it difficult for Mr Martin to sell the film to finance companies.  As a result, Mr Martin decided to offer them a share of his writing income and a figure of 15% was later agreed. 

On 5 March 2014, Mr Martin signed an agreement with a film company to finance the film.  The agreement contained a warranty that Mr Martin was the sole author of the screenplay.  On 8 April 2014, following a therapy session which Mr Martin and Ms Kogan attended to try and save their personal relationship, Ms Kogan raised the question with Mr Martin regarding her share in the income relating to the screenplay. 

As alluded to above, many drafts of the screenplay were produced.  Mr Martin did not dispute that Ms Kogan was involved in some way in creating the earliest three drafts of the screenplay.  Ms Kogan accepted that her involvement in the fourth draft and subsequent drafts (including the final version) was not significant as she had then moved out of Mr Martin’s flat.  Therefore, the dispute between the parties was the extent and nature of Ms Kogan’s contributions. 

The film “Florence Foster Jenkins” was released in 2016.  It was a blockbuster film which starred Meryl Streep and Hugh Grant and was directed by Stephen Frears.  The film was a box office hit grossing around $56 million worldwide. 

Court’s first instance decision

In 2017, the claim was heard by His Honour Judge Hacon in the Intellectual Property Enterprise Court (IPEC).  The IPEC is a division of the High Court in England and Wales which deals with lower value and less complex intellectual property disputes and which operates a fixed costs regime. 

At first instance, Judge Hacon dismissed Ms Kogan’s claim to be recognised as joint author concluding that “the textual and non-textual contributions made by Ms Kogan never risen above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions.  Taken together, they were not sufficient to qualify Ms Kogan as a joint author of the screenplay, even had those contributions all been made in the course of a collaboration to create the screenplay”

Court of Appeal’s decision

The Court of Appeal reversed the decision made by Judge Hacon and ordered a re-trial. 

The Court of Appeal considered whether it was open to Mr Martin to treat this case as one that had to be analysed by reference to Ms Kogan’s contribution to the final draft of the screenplay or whether Ms Kogan’s contribution should be determined by all of the drafts produced.  The Court of Appeal held that this point had not been open to Judge Hacon to consider at the first trial because it had not been pleaded or raised before the first trial.

The Court of Appeal also considered the extent to which it was able to review the findings of fact made.  The Court of Appeal reviewed and commented on the documentary evidence that had been taken into account but also identified documentary and witness evidence that had not been considered.  The Court of Appeal therefore found that Judge Hacon had failed to make essential primary findings of fact on the main issues in the case.  As a result, the Court of Appeal felt it had no choice but to order a retrial. 

Practical guidance on the law of joint authorship

Whilst the battle between Mr Martin and Ms Kogan continues, the Court of Appeal did provide some very helpful practical guidance on the law of joint authorship in relation to copyright works.

Section 10(1) of the Copyright, Designs and Patents Act 1988 (the CDPA) governs works of joint authorship and states: “a work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors”.  The four elements of joint authorship are therefore:

  • Collaboration;
  • Authorship;
  • Contribution; and
  • Non-distinctness of contribution.

The Court of Appeal in the Kogan v Martin case has provided the following 11 step test to determine joint authorship.  This test was applied not just in the context of the screenplay at the heart of this case but also other copyright works such as books, music and computer programs:

  1. A work of joint authorship is a work produced by the collaboration of all the people who created it.
  2. There will be collaboration where people undertake jointly to create the copyright work with a common design as to its general outline and where they share the labour of working it out. The Court will need to determine the nature of the co-operation between the joint authors which resulted in the creation of the work.
  3. The following will not qualify as joint authorship works: derivative works, works where one of the authors only provides editorial corrections or critique and where there is no wider collaboration and works where ad hoc suggestions of phrases or ideas are made without there being any wider collaboration.
  4. It is never enough to ask “who did the writing?” when determining joint authorship. Authors can collaborate to create a work in many different ways.  For example, there may be joint authorship if one person creates the plot and the other writes the words, or if either or both of these types of labour is shared.
  5. Joint authors must have contributed a significant amount of the skill which went into the creation of the work. The definition of author can include all those who created, selected or gathered together the detailed concepts or emotions which the words have fixed in writing.
  6. What counts as an authorial contribution is acutely sensitive to the nature of the copyright work in question.
  7. A joint author must have contributed elements which express their own intellectual creation i.e. they must have exercised free and expressive choices. The more restrictive the choices the less likely an author will be to satisfy the joint authorship test.
  8. The contribution of the putative joint author must not be distinct from the work of the other author(s).
  9. There is no 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 as to whether there has been collaboration but it is not conclusive. However, the author with the final say must be given credit when the proportions of ownership are determined bearing in mind the extra work that author will have done in making those final choices.
  11. The respective shares of the joint authors do not need to be equal, but can reflect, pro rata, their contributions.

Our specialist intellectual property disputes team routinely advises on a broad range of disputes relating to copyright along with other intellectual property disputes relating to trademarks, patents, confidential information and data protection.  The team is also highly skilled at advising on design rights and reputation management issues and are regularly instructed by clients from the arts, media, textile and clothing sectors in the UK and internationally.  If you need advice on copyright or other intellectual property infringements, please do not hesitate to contact a member of the team today.