Brighton & Anor v Jones

Copyright in a later dramatic work does not absorb copyright in an earlier work from which it is derived. A person claiming joint authorship must show a significant and original contribution to the creation of the work, rather than merely contributions to its performance, interpretation or presentation. Where a gratuitous licence is implied from the voluntary provision of copyright material, it is ordinarily revocable on reasonable notice, but remains effective until revoked. Contractual damages are not awarded for disappointment or injured feelings in an ordinary commercial contract, although damages may reflect the commercial value of lost publicity where financial loss is established.

The claim concerned Stones In His Pockets, first produced by the second claimant in 1996 and written by the defendant. The first claimant, the director, claimed joint authorship of the 1996 script based on her contributions during rehearsals. She also claimed copyright in a draft opening script which the defendant had used in developing the play and alleged infringement through the 1999 rewrite and its exploitation.

The production company claimed contractual income and damages for failure to credit it as the original producer. The court had to determine authorship, the scope and revocation of any implied copyright licence, and whether damages were recoverable for the omitted credit.

1. Joint authorship. The first claimant failed to displace the statutory presumption arising from the defendant being named as author. Joint authorship requires a significant contribution towards the creation of the work. Contributions directed to interpretation, performance, editing or theatrical presentation are insufficient. The defendant retained responsibility for choosing the words and had the final decision whether proposed changes were incorporated. The claimant’s contributions did not create a sufficiently different dramatic work. The defendant was therefore sole owner of the 1996 copyright.
2. The contractual provision under which approved changes accrued solely to the defendant’s copyright provided an independent reason why the claim could not succeed. The first claimant acted at rehearsals only as the production company’s contracted director and could not obtain a better copyright position than the company itself.
3. Draft opening script. The draft was itself a dramatic work, notwithstanding that it covered only the opening scenes. Copyright in it was separate from copyright in the completed 1996 and 1999 scripts. The defendant’s use of its plot and incidents amounted to copying in the copyright sense, although the 1996 use was authorised by an implied licence.
4. The licence was gratuitous and was not confined to the 1996 production. It permitted use unless and until revoked on reasonable notice. The first claimant’s solicitors’ letter of 7 November 2001 operated as revocation. The 1999 rewrite and contracts made before that date therefore did not infringe. Future exploitation contracts would require the first claimant’s consent.
5. Contractual claims. The defendant accepted liability for the contractual income payments, and the production company could apply to the Master for an account or inquiry after receiving underlying documents. The defendant undertook to provide future programme credits. No damages were awarded for the omitted credit: disappointment and affront were not recoverable, and no realistic financial loss was proved. The claim otherwise failed.