On 11 January 2021, the High Court decided in favour of Ms Kogan in the infamous copyright joint authorship dispute that she was in fact a joint author.

The decision concerned a re-trial from the Court of Appeal (and previously the IPEC) for a dispute over the authorship of the screenplay of the film “Florence Foster Jenkins”.

The judgment provides helpful clarification of the legal principles of joint authorship in a copyright work and insight into the approach of the Court in assessing the evidence of joint authorship and quantifying the shares of joint authors.

BACKGROUND

The First Claimant (“Martin”) was an author of the screenplay. He contends that he was the only author. The Defendant and Part 20 Claimant (“Kogan”), claims to be a joint author of the screenplay, which is the central issue.

Kogan sent a letter before action in April 2015 and Martin subsequently brought proceedings, for a declaration that he was the sole author and sole copyright owner. Kogan counterclaimed that she was joint author and joint copyright owner, and sought relief for copyright infringement and infringement of her moral rights.

Kogan also brought a Part 20 Claim against the Film Companies (who financed and produced the film) who argued Kogan’s claim was barred by estoppel and acquiescence on the basis she did nothing to stop the production of the film or she had no right to stop their activities.

One of the significant issues in the Court of Appeal concerned the reliance on earlier drafts of the screenplay. The Court of Appeal held that HHJ Hacon erred in looking only at the final version and not taking account of contributions to earlier drafts. The Court of Appeal directed the case should be remitted on the basis that:

– Kogan may rely on all her contributions to the screenplay but accepts that her contributions after the third draft were limited; and

– The list of issues to be determined should expressly include whether there was a collaboration between the parties, and the nature of that collaboration.

THE LAW – JOINT AUTHORSHIP

Section 10(1) of the Copyright, Designs and Patents Act 1988 governs works of joint authorship. It provides:

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.”

The four elements of joint authorship are thus (a) collaboration, (b) authorship, (c) contribution and (d) non-distinctness of contribution. The Court of Appeal helpfully summarised the legal principles from case law applicable to addressing joint authorship at [53].

HIGH COURT JUDGMENT [417]

The High Court found:

– Ms Kogan was a joint author.

– Her contribution was 20%.

– The Film Companies’ defence of estoppel in substance succeeds, on certain very minor conditions.

– Ms Kogan consented to dealings with the Screenplay but withdrew her consent in 2015.

– Mr Martin and the Second Claimant infringed after Ms Kogan withdrew consent from them on 16 March 2015.

Issues 1 and 2 – was there a collaboration and what was its nature? [312-315]

The Judge found as matters of fact that Kogan had the original idea of the screenplay but Martin would “hold the pen” and have the final say. The Judge noted Kogan’s input and comments to the writing of the screenplay was “much less in quantity” and often at Martin’s request but “that went well beyond mere editing”. [314]

The Judge held that despite the couple never having formal planning meetings to allocate tasks, their conduct and intention of setting out about the creation of such a screenplay amounted to a common design as to general outline and a sharing of labour. The Judge noted that the intention at the time was unlikely to create a joint authorship but the Court of Appeal made clear in point 9 at [53] that that is not a separate requirement.

Issue 3 – what was the nature of Ms Kogan’s contribution? [316-318]

The Judge noted that Kogan had the initial idea and that was “almost the only thing that she contributed alone”. [316]

However, the Judge observed Kogan’s understanding of musicality and its interaction with the characters and she made significant plot and character suggestions based on this.

Issue 4 – was Ms Kogan’s contribution authorial? [319-321]

The Judge held that Kogan’s contribution was authorial because it resided in the “creation, selection and gathering together of detailed concepts and emotions which the words have fixed in writing”. [319]

The Judge went on to state the mere idea to make a screenplay about Florence would not have been authorial on its own.

Issue 5 – was Ms Kogan’s contribution an expression of her own intellectual creation? [322]

The Judge found that Kogan’s contribution was an expression of her intellectual creation, stating “her contributions were far from mechanical or constrained and were highly creative and imaginative. The fact that Mr Martin had the final decision does not mean that her contribution was not an expression of Ms Kogan’s own intellectual creation.” [322]

Issue 6 – was Ms Kogan’s contribution distinct? [323]

The Judge noted it was “impossible” to say which of the couple contributed what: “trying to separate them would be like trying to unmix purple paint into red and blue.” [323]

Issue 7 – relative amounts of the contributions [324-357]

The Judge applied the following assessment:

  • There is a presumption in favour of equal shares as between joint authors.
  • Joint authors may provide otherwise by agreement (not relevant here).
  • There may be circumstances where the Court is not able to reach any different conclusion than equal shares.
  • But if circumstances justify a different result than equal shares the Court may so decide, assigning shares pro rata to their individual contributions.
  • The decision is a highly subjective one and may be approached on a broad-brush basis”. [330]

Going through the above analysis, the Judge found that Kogan’s contribution was 20%. He noted the figure was arrived at not “by way of a calculation but putting very rough numbers to it purely as a cross-check”. [355]

Estoppel/acquiescence and lack of consent [363-405]

The Judge concluded that Kogan is estopped from seeking an injunction against the Film Companies or any restriction on the form in which they distribute or commercialise the film, or any financial relief against them, so long as they pay to her 20% of anything owing by them to Martin for the future.

The Judge made this finding in the context of the unconscionability of Kogan’s late claim and that she knew about the Film Companies’ committal to commercialise the screenplay on the basis Martin was sole author. On the other hand, the Judge also noted the Film Companies accrued substantial benefit from the exploitation of the Film, which included Kogan’s contribution.

The Judge found that Martin had infringed Kogan’s copyright after Kogan withdrew her consent (when it became clear that she would get no writer’s credit) in his acts of dealing with the screenplay thereafter (making copies in the course of improving the screenplay for shooting and the like).

Conversely, the Judge found the Film Companies did not infringe on the basis they have a substantive defence of estoppel that “puts the Film Companies in essentially the position they genuinely and reasonably thought they were, and on the faith of which they acted, subject to minor incursions for the future which impose little burden on them but will or may be very important for Ms Kogan, in particular the IMDb credit as a means for furthering her career.” [400]

Looking forward  

The Judge provided some useful and practical closing comments on the effect of the judgment in the film industry:

Parties in the position of the Film Companies investing in works such as screenplays are and always have been in the position that it might turn out that the purported author is not the only author, or has wrongly copied from someone else. Neither this judgment nor that of the Court of Appeal creates that risk for the first time. The risk is managed by dealing with authors with a good reputation, by making appropriate inquiries, by taking appropriate warranties and indemnities, and by acting responsibly if a problem arises.” [409-410]

The judgment is also a reminder that the Court’s assessment of joint authorship will go beyond a sole quantitative check to also look into the nature of the qualitative input in terms of its significance to the overall screenplay.