The Intellectual Property Enterprise Court set the scene for a dispute between former partners – Ms Julia Kogan and Mr Nicholas Martin – in which Mr Martin sought a declaration that he was the sole author of the screenplay for the film 'Florence Foster Jenkins' (the "Screenplay"). .
The eponymous film, which premiered in April 2016 with Meryl Streep and Hugh Grant in the starring roles, is based on the struggles of the New York socialite in her quest to be accepted as a great soprano despite such an absence of talent that one historian, Stephen Pile, was driven to rank her as "..the world's worst opera singer..." and a person who unlike any other "… before or since… succeeded in liberating themselves quite so completely from the shackles of musical notation…".
The application by Mr Martin for the declaration had arisen in response to a demand by Ms Kogan, with whom Mr Martin had previously been in a relationship, for a proportion of the income that he had earned from the film. Ms Kogan filed a counterclaim seeking a declaration of joint authorship, and joined the film's production and financing companies as parties, claiming infringement of her copyright and seeking compensatory relief.
After trial, the judge, HHJ Hacon, held that Mr Martin was indeed the sole author and therefore no infringement of copyright in the Screenplay had occurred. However, the case presents a thorough and detailed account of the ways in which different types of contribution by multiple parties may give rise to instances of joint authorship, and therefore joint ownership.
Joint authorship in copyright works
The "author" of a work means the person that creates it according to section 9(1) of the Copyright, Designs and Patents Act 1988 ("CDPA"), and the author is the first owner of any copyright in the work (section 11(1) CDPA). Therefore, in order to stake a claim in the ownership of the copyright in the Screenplay, Ms Kogan sought to assert that she had jointly authored the Screenplay with Mr Martin.
Section 10(1) CDPA sets out the test for joint authorship:
"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".
It therefore seems that the two key elements are collaboration and contribution. However, there is also an implied third requirement, which is that the contribution must be sufficient to enable someone to qualify as an 'author'.
Collaboration requires true teamwork. Merely consenting to one's work being used in collaboration with another's is likely insufficient.
Whilst consent is necessary for collaboration, there must be an element of common design, i.e. co-operative efforts by the authors at the time of creation, which led to the work's creation.
In order to be jointly authored, the contribution by each author must not be distinct from that of the other author(s). As much is clear from the wording of section 10(1) CDPA.
A joint author must be an 'author' within the meaning of section 9(1) CDPA, and therefore must have contributed a substantial part of the 'original' work, i.e. skill and labour or intellectual creation protected by the copyright.
These contributions may be made by the use of 'primary' or 'secondary' skills. For example:
- in an artistic work:
- the primary skill might be the use of a pencil, brush, computer, etc.;
- the secondary skill might be the composition and selection of colour.
- in a literary work:
- the primary skill is in the selection and arrangement of words in the course of setting them down;
- the secondary skills include inventing plot and character.
Whilst the test of sufficient contribution in relation to joint authorship is more easily met for primary skills, a larger amount of secondary skill must be employed to receive joint authorship for the contribution.
This may lead to some strange results as, in the above examples, it could well be argued that the genuinely original thought and intellectual creation comes from the more overarching secondary skills, rather than the use of a pencil or a computer to merely materialise, fix and realise that vision. Indeed, in this regard, HHJ Hacon was keen to point out that secondary skills are not necessarily any less important in the creation of a work.
HHJ Hacon provided further helpful guidance on determining joint authorship, which can be summarised as follows:
- There is no distinction between the types of contribution (depending on whether primary or secondary skills are used) for the purposes of determining sufficiency, acknowledging it may be easier to demonstrate – evidentially – contribution by reference to primary skills.
- If the contribution would attract copyright protection, there will be a strong indication that the contribution constitutes a substantial part of the work, i.e. if the contribution alone were copied by an unlicensed third party and such copying would result in an infringement of the copyright, the contribution will constitute a substantial part of the whole.
- Determining whether the contributor is an 'author' by the sufficiency of their contribution is both a qualitative and quantitative assessment.
- Suggestions from a putative joint author:
- which form no part of the creation of the work are to be disregarded from the assessment of joint authorship;
- by way of criticism, editing or corrections on how the main author should exercise his/her skill, where the main author has the final decision as to the form and content of the work, will not lead to joint authorship. Thus, it is relevant, but not decisive, whether an author is the ultimate arbiter as to content of the work.
HHJ Hacon confirmed that the burden of proof rests on the party seeking the declaration to show that they are a joint author on the balance of probabilities. If joint authorship is established, the court may apportion ownership of the copyright.
When the Screenplay was completed, Mr Martin and Ms Kogan were no longer a couple. Mr Martin was credited as the sole author when the film premiered. Seeking a declaration of joint authorship, it was for Ms Kogan to prove that her contribution warranted joint authorship.
After she conceded upon cross-examination that she made no significant contribution to the Screenplay, as her input was during the time of creation of the first to third drafts of the script, the court held that there was no collaboration between Mr Martin and Mr Kogan in creating the Screenplay and therefore she was not joint author of that work.
However, HHJ Hacon went on to consider whether her contributions to earlier drafts were sufficient to make her joint author.
Due to the inadequacies of her pleading, Ms Kogan was asked to better particularise her contributions to the three earlier drafts of the script. Six of her best contributions were presented by counsel, including specific suggestions for additions or amendments to scenes (including the use of particular music or technical musical language, Ms Kogan's background being as an opera singer), as well as various typographical amendments to the text.
HHJ Hacon emphasised the fallibility of the human memory when considering witnesses' recollections. Instead, he preferred to base his findings on inferences drawn from the documentary evidence, and known or probable facts.
HHJ Hacon determined that Ms Kogan's contributions to the text of the Screenplay were limited to suggestions of technical musical language, on the basis that she was undoubtedly more familiar with these terms than Mr Martin. These were incorporated into the first three drafts and some of them found their way into the Screenplay.
Mr Martin was, however, the ultimate arbiter of what went into the Screenplay, as well as the preceding drafts. Mr Martin's claim to sole authorship was supported by documentary and undisputed evidence. In terms of non-contextual contributions, Mr Martin also decided which of Ms Kogan's ideas were to be used in the Screenplay and which were not.
According to HHJ Hacon, her contributions "never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions". This was not sufficient to qualify for joint authorship.
Unfortunately, Ms Kogan was also landed with a substantial order for costs against her. Further comment on the costs decision can be found here.
In the above case, where the relevant contributions by the third party were so disparate from those of the author, such a result is to be expected. However, the interaction between primary and secondary skills may result in significant blurring of the lines where the facts are altered slightly.
For example, take an entrepreneur who has an idea for the perfect mobile application to market his business. This entrepreneur ("A") has a vivid picture of how he wishes the application to look – it is unique, original and can be said to be his own intellectual creation. However, A does not have the requisite skill-set to create this application. As a result, he instructs a coder ("B") to develop this application. B takes A's instructions and designs the application exactly as A describes, by copying various pieces of open-source or unoriginal code (perhaps from an earlier project) without much (if any) original thought.
Analysing the contribution via primary and secondary skills, B exercises the primary skill and A exercises the secondary skill. Thus, B could potentially have the stronger claim for authorship of the resulting copyright in the code underlying the application, but his contribution may be insufficient to make him an author.
A similar situation could arise where an storyteller details the idea – in great depth, paragraph by paragraph – for a new novel to a typist. Original thought and intellectual creation comes from the storyteller, but the primary skill of typing the relevant words into a reader-friendly format is undertaken by the typist, which in turn allows the work to be recorded, ensuring that it can qualify for protection as a copyright work. It is clear from previous case law that, if the typist merely types what the other person says without independent thought, the typist will not be considered an author of the work . However, where the typist exercises intellectual creativity in reducing the storyteller's words into a material form – choosing the exact order of the words, for example, though not creating the storyline – the typist will have a strong claim for authorship of the story, despite not divising the plot. The key difference between the two examples will be the level of skill, labour and judgment exercised by the typist.
It may be that, in future, given the preference of the courts – as is only natural – to rely on documentary evidence (such as contemporaneous notes and correspondence) to determine the facts of a case, parties may become more aware of the need to specifically record their contribution, or enter into an agreement at the outset determining ownership, rather than relying on imperfect recollection down the line.