The recent Court of Appeal decision in Martin v Kogan has provided useful guidance on how to determine when a work is the product of joint authorship under the Copyright, Designs and Patents Act 1988 (the Act) and the extent to which contributions – however small – can amount to authorship.
The case concerns a dispute over the authorship of the screenplay for the 2016 biographical film Florence Foster Jenkins, starring Hugh Grant and Meryl Streep.
In 2017, the Intellectual Property Enterprise Court determined that Martin (the credited screenwriter) alone was the author and sole owner of the copyright in the screenplay. The contributions of Kogan (Martin’s romantic partner at the time of writing the screenplay) were dismissed as insufficient to qualify her as joint author. Kogan argued that she introduced Martin to the life story of the self-proclaimed operatic singer Florence Foster Jenkins (the screenplay’s subject), as well as contributing characters and dialogue to drafts of the screenplay.
In October 2019 the Court of Appeal allowed Kogan to appeal as it believed 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.” Under the Act, 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(s).
In re-appraising Kogan’s argument, the Court of Appeal provided a list of key factors to consider when determining whether a work is the product of joint authorship:
1. Works of joint authorship must be created by way of collaboration.
2. Collaboration requires working together pursuant to a common design, though there does not need to be a subjective intention to create a work of joint authorship.
3. The provision of editorial corrections, critiques or ad hoc suggestions with no wider collaboration do not qualify as joint authorship.
4. When appraising collaboration, it is not enough to simply ask, “who did the writing?” A collaborative work can consist of one person providing the plot and the other person writing the words that give effect to that plot.
5. If one joint author had the final say over what went into the final version of the work, this will bear some relevance as to whether there was collaboration but it will not be a conclusive factor.
6. Each joint author must have contributed a significant part of their skill and labour in creating the work.
7. The contributions of joint authors must not be distinct from one another.
8. A joint author’s contribution must be an authorial one. What counts as an “authorial contribution” will depend on the type of work concerned. In this instance, an authorial contribution to a screenplay requires providing plot and dialogue which allows readers to visualise what is happening on the screen.
9. How much of a contribution a joint author must make requires asking whether the joint author has contributed elements which express their own intellectual creation, i.e. by exercising unrestricted, expressive and creative choices.
10. The remunerative shares of the joint authors do not have to be equal but can instead reflect the relative contributions of each author.
In light of this judgement and its guiding principles, those in the publishing industry who work in a collaborative fashion – whether that be friends or partners working together, co-writers, ghost-writers or contributing editors – should carefully assess their working practices and whether they have agreements in place to address the possibility of joint authorship.
Those who publish or produce works created collaboratively will need to make a determination as to the authorship of the work so they can ensure they have obtained the necessary rights and are remunerating and crediting the correct persons.
Properly identifying authorship will be particularly important following the implementation of the new EU Copyright Directive (to the extent it is implemented in the UK, see our discussion on this topic here) which gives authors a new right to claim additional remuneration where their original remuneration is disproportionately low in comparison to the revenues derived from the exploitation of their work.