The Court of Appeal handed down its Judgment in the case of Martin vs Kogan this week and it has provided some very helpful guidance on works of joint authorship under English law.

The case concerned Ms Kogan, a writer and an opera singer who has sung at Carnegie Hall. She met Mr Martin, and they had a romantic relationship. During that time, she suggested writing a screenplay based on the story of Florence Foster Jenkins. Ms Kogan claims to have made significant contributions to many aspects of the screenplay for the film, including the original idea, the characters, the story and the dialogue. She accepts that Mr Martin was the main writer but maintains that the process of writing the screenplay was a creative collaboration in which she participated as a partner.

As a result of the way in which their ideas were intertwined and built upon by both, their respective contributions to the script are inseparable. Ms Kogan claims to be a co-writer and co-author.

Mr Martin claimed to be the sole author of the screenplay, and asserted that at no time did Ms Kogan suggest scenes, characters, or sequences, nor did she contribute in any way to the construction of the films structure; he claimed that he wrote every word and made every decision about what should and should not be included, discarded or changed.

The matter was tried before Mr Justice Hacon sitting in the Intellectual Property Enterprise Court (IPEC) [1], and he gave judgment in November 2017 making a declaration that Mr Martin was the sole author of the screenplay. Ms Kogan appealed to the Court of Appeal. The Court of Appeal handed down its Judgment on 9 October saying that, “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”.

The Court of Appeal therefore allowed the appeal and set aside the Judge’s declarations and other orders. It ordered that there be a new trial before a different judge in the IPEC who should be a full-time circuit or High Court Judge, and ordered that the costs of the Appeal be paid by Mr Martin to Ms Kogan.

In giving Judgment, the Court of Appeal provided some much-needed guidance on the law relating to works of joint authorship. Lord Justice Floyd stated in his Judgment:

  • 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 presumed authors only provides editorial corrections or critique, but where there is no wider collaboration, do not qualify. In addition, ad hoc suggestions of phrases or ideas 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, “Who did the writing?”. Authors can collaborate to create a work in many 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 types of labour is shared.
  • 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, it is not correct to focus exclusively on who fixed the work in writing.
  • Contributions which are not “authorial” in the above sense do not count. What counts as an authorial contribution is acutely sensitive to the nature of the copyright work in question.
  • The question of what is enough of a contribution is to be judged by the Infopaq test, i.e. whether the supposed 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.
  • The contribution of a supposed joint author must not be distinct.
  • There is no further requirement that the authors must have subjectively intended to create a work of joint authorship.
  • 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. The author with the final say must be given credit in deciding on the relative proportions of ownership, for the extra work involved in making those choices.
  • 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.

As a result of this judgement, there will now be a re-trial in the knowledge that the Court of Appeal said they consider it is entirely realistic that a reconsideration of all the evidence will show that Ms Kogan’s contribution was indeed made as part of a collaboration and passed the quantitative threshold for joint authorship.