Martin & Anor v Kogan & Ors

Joint authorship requires collaboration in the creation of the specific copyright work. Collaboration requires a common design and cooperative acts which lead to that work’s creation; consent to use material from an earlier work is insufficient.

Contributions unrelated to creating the work are disregarded. Relevant contributions must be sufficient, assessed qualitatively and quantitatively by whether they amount to a substantial part of the work and would themselves attract copyright protection. No legal distinction exists between primary and secondary creative skills, although evidence based only on secondary skills may face greater difficulty. An ultimate arbiter is a relevant but non-decisive factor.

The first claimant, a screenwriter, sought a declaration that he was the sole author of the screenplay for a film about Florence Foster Jenkins. The defendant, his former partner, counterclaimed for a declaration of joint authorship and copyright infringement. She also claimed against the production and financing companies, which raised acquiescence and estoppel.

The screenplay was the final draft used to shoot the film. The defendant relied on contributions to earlier drafts, including musical terminology, plot suggestions and criticism. The central issues were whether those contributions made her a joint author under section 10(1) of the Copyright, Designs and Patents Act 1988, and whether acquiescence or estoppel defeated the claims against the Part 20 defendants.

1. Joint authorship. The claimants succeeded on the central issue. The final screenplay was created after the parties’ personal and working relationship had ended. There was therefore no collaboration in creating that specific work. Consent to the later use of material from earlier drafts did not constitute collaboration.
2. Under section 10(1) of the Copyright, Designs and Patents Act 1988, joint authorship requires: collaboration by common design; contributions which are not distinct; and a sufficient contribution. Contributions which form no part of the creation of the work are disregarded.
3. The sufficiency inquiry is whether the contribution constitutes a substantial part of the work. This requires a qualitative as well as quantitative assessment. If the contribution would itself be protected by copyright, it will ordinarily satisfy the sufficiency requirement. No distinction is drawn in law between primary and secondary skills, although secondary contributions may present greater evidential difficulty.
4. An ultimate decision-maker is relevant, sometimes highly relevant, but is not decisive. Suggestions, criticism and editing will not establish joint authorship where the principal author retains the final decision on the form and content, but the presence of an ultimate arbiter does not automatically prevent joint authorship.
5. The defendant’s proven contributions were limited to technical musical language, minor editing, helpful criticism and some plot suggestions. Taken together, they were insufficient. The first claimant was the sole author of the screenplay.
6. The court also considered estoppel briefly. Had the defendant been a joint author, her consistent representation that the film should be produced and released would have made it unconscionable for her to rely on joint ownership to restrict its public performance. The court did not determine the wider hypothetical estoppel issues.
7. Judgment was given declaring the first claimant the sole author and that the claimants had not infringed copyright. The Counterclaim and Part 20 Claim were dismissed.