Background and Facts of the Case
In recent years, the notion of “joint authorship” has been the subject of various debates and discussions, most notably in relation to copyright works in the film industry. A recent judgment in this regard is the ‘Martin vs. Kogan’ judgment, where in 2017 the case was brought before the UK Intellectual Property Enterprise Court (IPEC) at first instance, with the latter’s decision being appealed. Last month, the Court of Appeal delivered a landmark appeal judgment which serves as a guidance to joint authors, highlighting the level of input that is needed for a contributor to be ultimately regarded as a joint author for their contribution.
The main dispute in the case in question concerned the authorship of the screenplay of the 2016 drama-comedy film ‘Florence Foster Jenkins’, which was directed by Stephen Frears and starred actors Meryl Streep and Hugh Grant. Nicholas Martin, a professional writer of film and television scripts, is regarded as being the sole author of the film’s screenplay. However, Julia Kogan, a professional opera singer, claimed to be a joint author of the film’s screenplay, seeking a portion of Mr Martin’s film income. Both Mr Martin and Ms Kogan gave conflicting statements on the creation of the film’s screenplay. Mr Martin, claiming sole authorship, did not contest the fact that Ms Kogan had introduced him to the story of Florence Foster Jenkins. He stated that Ms Kogan was a supportive proof-reader and sounding board, outlining minor information and suggestions based on her musical experience. On the other hand, Ms Kogan, claiming joint authorship, credited Mr Martin as being the main writer, but based creative collaboration. She stated that she wrote, either alone or with Mr Martin, significant parts of various scenes. Mr Martin and Ms Kogan were in a relationship and living together during the creation of the early drafts of the film’s screenplay, and the couple regularly discussed the project.
From a UK perspective, the governing legislation in this regard is the Copyright, Designs and Patents Act of 1988, wherein Section 10 (1) provides that 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.” Similarly, from a Maltese perspective, the Copyright Act, Chapter 415 of the Laws of Malta, regulates the realm of joint authorship, where Article 2 defines “work of joint authorship” as being “a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors”.
The First Instance IPEC Decision
The Intellectual Property Enterprise Court here considered whether the contributions made by Ms Kogan were enough to qualify her as a joint author. Although the Court found evidence that Ms Kogan jointly wrote the screenplay with Mr Martin, there was more evidence to demonstrate that Mr Martin had written the initial drafts of the screenplay alone, with Ms Kogan only providing minor assistance.
Consequently, the presiding Judge, Mr Justice Hacon, found Mr Martin to be the sole writer of the drafts of the screenplay, with Ms Kogan’s input being only minor and limited to criticism, minor plot ideas and technical musical expression. Therefore, her input was deemed insufficient to qualify her as a joint author, with Mr Martin being able to declare himself as the sole author of the film’s screenplay. Following the decision, Ms Kogan appealed.
The Court of Appeal Decision
On 9th October 2019, the Court of Appeal delivered its judgment. The Court held 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”. Therefore, the Court of Appeal, setting the IPEC decision aside, accepted the appeal and, in an unusual move, ordered the re-trial before the IPEC in front of a new judge.
The raison d’être behind the Court of Appeal’s decision rested upon whether Ms Kogan’s input in the film’s screenplay was enough to satisfy the four main elements of joint authorship: (a) collaboration, (b) authorship, (c) contribution and (d) non-distinctness of the contribution. The Court considered each element respectively, and provided valuable insight as follows:
For a work to be regarded as joint authorship, it has to be created through a collaboration , in pursuance of a common design, thus making derivative works ineligible. Nevertheless, a collaboration must go beyond mere editorial amendments, criticism or recommendations. Moreover, with regard to the work, it is also important to establish the true nature of the communication between the contributors.
The Court held that creation and fixation are not one and the same, shifting the focus from ‘who wields the pen?’. In fact, the Court of Appeal held that: “It is the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing which is protected in the case of a literary or dramatic work, whether the work is one of sole or joint authorship. Too much focus on who pushed the pen is likely to detract attention from what it is that is protected, and thus from who the authors are”.
Here, the Court of Appeal held that the contribution made by a joint author must be “authorial”. The Court noted that since the screenplay is categorised as a dramatic work, elements such as plot and characters do amount to an authorial contribution. This begs the question: How much does a contributor have to contribute to a collaborative work to acquire the status of a joint author? This question was answered by referencing the ‘Infopaq’ test. This tests states that a joint author must contribute elements which convey his/her own intellectual creations through free and expressive decisions.
Non-Distinctness of Contribution
This element stipulates that the contribution must not be capable of being separated. Contrary to the IPEC ruling, the Court of Appeal stated that the fact that one contributor has the decisive say does not inhibit joint authorship, yet this only affects the proportion of ownership. Moreover, the Court of Appeal also highlighted that the contributions made by each joint author do not need to be equal and that each share can reflect, pro rata, the respective amount of their contribution.
The Court of Appeal’s decision is a fundamental one since, besides clearly outlining the current legal position on joint authorship and copyright, it also confirms that the contribution of a major author should not in any way reduce the importance of a minor joint author’s contribution. Interestingly, this judgment also delves into the ‘idea/expression’ dichotomy since the Court, in its analysis of joint authorship, also addresses the concept which lies at the core of copyright – the notion that mere ideas are not afforded copyright protection, but the expression of those ideas can. In relation to a collaboration, it is generally assumed that character or plot suggestions are merely ideas and thus not afforded copyright protection. However, considering that such suggestions were in fact afforded protection in this case, it will be interesting to see how future parties may be encouraged to use this judgment to allege copyright protection to mere ideas which were previously not afforded copyright protection. Therefore, this appeal judgment is of significant importance to minor joint authors, the contributions of whom may have been unjustly overlooked previously, and with a clear interpretation of the current legal position of joint authorship, minor joint authors may be empowered to seek recognition, compensation and joint authorship status for their work in a collaboration.