High Court rejects claim of joint authorship in a screenplay

The screenplay for the film Florence Foster Jenkins was written by Nicholas Martin, as sole author. Mr Martin’s ex-girlfriend Julia Kogan’s contributions to the creation of the screenplay were not sufficiently collaborative.

Business impact

Film and TV producers are often concerned about the contribution of co-authors, early stage contributors to development. Whilst clear-cut IP assignments are best practice, this case sets a high threshold from a business point of view in case of dispute and may assist with net profit share negotiations.

Overview

A contributor will be considered joint owner of the copyright in a work if he or she collaborated in the creation of the work and his or her contributions are enough.  Collaboration must be by way of a common design, that is, co-operative acts by the authors, at the time the copyright work was created.  The contribution of each author must not be distinct from that of another, and, as such, no distinction is to be made between the types of contribution (for example, different types of contribution resulting from differing skillsets) that form part of the work.   Contributions made by a person but which are not included in the work are to be disregarded in the assessment of joint authorship.  Further, suggestions from a person as to how the main author should exercise his or her skill, such as criticism or editing, will not lead to joint authorship where the main author has the final decision as to the form and content of the work.

The film Florence Foster Jenkins premiered in April 2016 and is based on the latter part of the life of Florence Foster Jenkins, a New York socialite who became famous for her striking soprano voice.  Nicholas Martin, a professional writer of film and television scripts, lived with Julia Kogan, a professional opera singer, during the period in which the idea of a film based on Florence Foster Jenkins arose and when early drafts of the screenplay were written.  Since April 2014 Julia Kogan had sought a proportion of Nicholas Martin’s income from the film, prompting Mr Martin to seek a declaration from the court that he was sole author of the screenplay.

The court thoroughly summarised the principles of joint authorship before concluding that Ms Kogan’s contributions were not of a substantial enough nature for joint authorship to arise.  The court found that Ms Kogan’s contribution amounted to suggestions of technical musical language, minor editing changes and minor plot changes. Some of these suggestions were included in the final version of the screenplay, however the court said that the contributions were not sufficient to qualify Ms Kogan as a joint author of the screenplay.  The court accepted as “likely” that Ms Kogan contributed non-textual suggestions, however since Mr Martin ultimately decided whether any of Ms Kogan’s ideas were used in the final screenplay, Ms Kogan’s input was limited.

Comment

This case provides a thorough summary of the law on joint authorship and is a useful reminder that, for the purposes of joint authorship, ‘collaboration’ must be truly collaborative.

Nicholas Martin v Julia Kogan [2017] EWCH 2927 (IPEC) (22 November 2017).

 

Astrid Bulmer, Trainee Solicitor, Simkins LLP