Kogan v Martin & Ors (Rev 1)

A work may be jointly authored where collaborators create its plot, characters, dramatic incidents or dialogue, even if only one person records the words or has the final editorial decision. The court must first identify the true nature of their co-operation and whether it involved a common design. It must then assess whether the alleged contribution was authorial, non-distinct and sufficient, applying the author’s own intellectual creation standard.

Plot and character are not inherently secondary to written expression, particularly in a dramatic work. A court must evaluate all relevant evidence, including reliable witness evidence, rather than treating guidance on the fallibility of memory as a reason to disregard it.

Julia Kogan claimed that she jointly authored the screenplay for the film Florence Foster Jenkins with Nicholas Martin. She alleged that their creative collaboration included dialogue, plot, character development and musical elements. Mr Martin maintained that he was the sole author.

At first instance, HHJ Hacon held that Mr Martin was sole author and that, in any event, Ms Kogan was estopped from interfering with the film’s public performance: [2017] EWHC 2927 (IPEC). He treated the final draft as a separate work created after Ms Kogan’s significant involvement had ended, and rejected her alleged contributions as insufficient.

The appeal concerned the proper test for joint authorship under Copyright, Designs and Patents Act 1988, the assessment of creative contributions to a screenplay, the treatment of the evidence, and the proper consequence of the limited estoppel finding.

1. Appeal allowed. The first-instance declarations and orders were set aside. A retrial was required before a different full-time circuit or High Court judge in the IPEC.

2. Under section 10(1) of the Copyright, Designs and Patents Act 1988, joint authorship requires collaboration, authorship, a sufficient authorial contribution, and contributions that are not distinct. Collaboration depends on a common design and shared labour in working out the work. It is not enough simply to ask who wrote or fixed the words.

3. For a screenplay, plot, characters, dramatic incident and dialogue may all be authorial subject matter. A person who contributes those matters in a genuine collaboration may be a joint author even though another person records the work in writing or has the final decision on what is included. Final control may bear on whether collaboration existed and on the parties’ relative shares, but it is not determinative.

4. The judge erred by treating the alleged contribution of plot and character as subject to a higher threshold than textual contribution. The relevant inquiry was whether the putative joint author contributed elements expressing her own intellectual creation through free and expressive choices. The judge also failed to determine whether the parties collaborated, the nature of any collaboration, and the significance of material textual, documentary and non-textual evidence.

5. The final-draft point should not have defeated the claim. The case had been managed on the agreed basis that contributions to earlier drafts which carried into the final screenplay could found the claim. A purported knockout point that contradicted that basis should have been raised at the case-management conference or pleaded.

6. Guidance concerning the fallibility of memory did not permit the judge to disregard witness evidence. The court had to assess all the evidence and explain why sworn evidence was rejected. The limited estoppel finding had become academic because Ms Kogan no longer sought relief that would restrict public performance of the film.

The retrial was to address expressly whether there was a collaboration and its nature. Ms Kogan could rely on all contributions, while accepting that her later contributions were limited.

• Court of Appeal (Civil Division): allowed the appeal, set aside the declarations and orders, and ordered a retrial: [2019] EWCA Civ 1645.
• Intellectual Property Enterprise Court: held that Mr Martin was the sole author of the screenplay and made a limited estoppel finding in favour of the film companies: [2017] EWHC 2927 (IPEC).