UK High Court rules on copyright and joint authorship: "useful jargon", "helpful criticism" and "minor plot suggestions" are not enough

Summary and key findings

The UK High Court, in Martin v Kogan, ruled, on 22 November 2017, that the defendant's contribution to the screenplay for the film Florence Foster Jenkins, starring Hugh Grant and Meryl Streep in the role of Florence Foster Jenkins, a famous American socialite known for her poor opera singing, was insufficient to amount to joint authorship.

While the parties had worked on early drafts together, HHJ Hacon found that there had been no collaboration between them in respect of the final version of the screenplay and Ms Kogan's textual and non-textual contributions had been insufficient.

Business impact

• Film production companies should make due diligence enquiries as to authorship of commissioned screenplays, and ask about any key contributors and the extent of their contributions. Contractual warranties as to authorship may not shield them from a future copyright infringement action by uncredited authors.
• Authors who have not actively co-operated in the creation of the final draft of a work will find it difficult to establish collaboration, a key requirement for establishing joint authorship.
• An author who is the "ultimate arbiter" and has always had the final say in the final content of a work might have good grounds to defend a claim for joint authorship, but this status is not determinative.
• Individuals who consider themselves co-authors should conduct themselves as such throughout their interactions with other author(s). From an early stage, they should make their contentions known and should seek to have their names published on copies of the work or, if that is not practically possible, object to their names not featuring on the final work. There is indeed a presumption of authorship in favour of the person whose name is on the copyright work.
• Parties involved in litigation should beware of placing too much emphasis on witness recollection of meetings and conversations unsupported by evidence. The Judge in this case found such evidence unreliable and placed little, if any, reliance on witnesses' recollection. He preferred to base findings on documentary evidence.

Background

Nicholas Martin, the claimant, authored the screenplay for the film Florence Foster Jenkins, starring Hugh Grant and Meryl Streep in the role of Florence Foster Jenkins, a famous American socialite known for her poor opera singing. Julia Kogan was the claimant's partner at the time the first three drafts of the screenplay were written and she sought a portion of his income from the film. She had indeed contributed to the first three drafts of the screenplay, after which her relationship with the claimant broke down and the final version of the screenplay was written. Mr Martin sought a declaration that he was the sole author and Ms Kogan counterclaimed for a declaration that she was a joint author. Ms Kogan joined the production companies of the film as Part 20 defendants, claiming that they had infringed her copyright.

Decision

The High Court confirmed that there are three requirements to establish joint authorship under section 10(1) Copyright, Designs and Patents Act 1988 (CDPA): (i) collaboration between two or more authors; (ii) absence of distinction in contributions; and (iii) (implied) the contributions need to be sufficient.

The Judge found that Ms Kogan had contributed to drafts 1-3, but not to the final screenplay, and commented that: "the source of the difficulty for Ms Kogan would be that she relied on the wrong copyright".

The Judge nevertheless proceeded to consider Ms Kogan's contributions in the screenplay and found that these were limited and insufficient and "never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions". As such, the Judge held that Mr Martin was the sole author and, since Ms Kogan was not the author of the screenplay, the part 20 Defendants' defences did not arise.

HHJ Hacon summarised his understanding of the law of joint authorship in 10 points. We have summarised some of the key points below:

• Collaboration and common design in respect of the creation of the work is needed to establish joint authorship. Consent to use one's work is necessary to establish collaboration, but is not sufficient, as this does not evidence a common design in the final work product.
• Contributions which do not form part of the creation of the work should be disregarded, for example: making scenic effects for the production of a play (Tate v Thomas); suggesting  changes to a play, where the author is in ultimate charge of the words to be used (Brighton v Jones); setting out specifications for software and reporting errors and bugs in respect of source code (Fylde Microsystems); and advising and criticising (however constructive) (Wiseman v George Weidenfeld & Nicholson).
• No distinction is to be drawn between types of contributions (and kinds of skill) forming part of the creation of a work. For literary works, primary skills (such as the selection and arrangements of words) and secondary skills (for instance inventing the plot and characters) should both be considered. That said, for evidential reasons, it will be harder to establish joint authorship by reference to secondary skills alone.
• The test for whether a contribution is sufficient is whether it constitutes a substantial part of the whole work (akin to the test of substantiality in the context of infringement, a qualitative as well as quantitative assessment). "Useful jargon", "helpful criticism" and "some minor plot suggestions" are not sufficient contributions.
• The main author being the "ultimate arbiter" is relevant, but not decisive.
• In a finding of joint authorship, the court may apportion ownership of copyright and this is translated in apportionment of royalty income.