Kogan v Martin & Ors (Rev 1)

Joint authorship requires collaboration pursuant to a common design, authorial contributions sufficient to express each contributor’s own intellectual creation, and contributions which are not distinct. Authorship extends beyond writing or fixing the work. Plot, characterisation and dramatic incidents can constitute authorial contributions, without a higher threshold for non-textual input. Relevant contributions must be assessed together and in their creative context.

A subjective intention to become joint authors is unnecessary. Ultimate control over the work does not exclude joint authorship, although it may bear on collaboration and the contributors’ respective shares. Courts must assess witness recollections alongside documentary evidence and explain why sworn evidence is rejected. General observations about unreliable memory provide no substitute for findings based on all the evidence.

Nicholas Martin, a professional screenwriter, and Julia Kogan, an opera singer with experience of writing and musical projects, were in a personal relationship during the development of a screenplay about Florence Foster Jenkins. Martin and his company, the second respondent, sought declarations that he was its sole author and copyright owner. Kogan claimed joint authorship, copyright infringement and a share of the proceeds. She also brought infringement proceedings against Florence Film Limited, Pathe Productions Limited and Qwerty Films Limited, companies involved in producing and financing the film.

Kogan principally relied on contributions to the first three drafts, including dialogue, plot and characterisation. HHJ Hacon in the Intellectual Property Enterprise Court, [2017] EWHC 2927 (IPEC), declared Martin the sole author and owner. He also found that an estoppel would prevent Kogan from restricting public performance of the film.

Kogan appealed against the treatment of earlier drafts, the legal standard for joint authorship, the assessment of her contributions and evidence, and the limited estoppel finding. The central questions were whether the correct principles had been applied and whether the necessary findings about collaboration and creative contribution had been made.

1. The appeal was allowed. The declarations and other orders were set aside, and a new trial was ordered before a different judge in the Intellectual Property Enterprise Court. The court did not determine that Kogan was a joint author.

2. Section 10(1) of the Copyright, Designs and Patents Act 1988 required collaboration, authorship, sufficient contribution and non-distinct contributions. Collaboration involved undertaking jointly to create a work pursuant to a common design and sharing the labour of working it out. The nature of the parties’ co-operation had to be established first. Editorial criticism or isolated suggestions outside a wider collaboration did not suffice. No additional subjective intention to become joint authors was required.

3. Authorship concerned creation rather than merely fixation. The approach in Cala Homes (South) Limited v Alfred McAlpine Homes East Limited was preferred to the narrower approach in Robin Ray v Classic FM plc. Creating or selecting detailed concepts and emotions could constitute authorship. A screenplay was a dramatic work, whose plot, characters and dramatic incidents could be essential creative elements. The distinction between primary writing skills and secondary skills of plot or character invention was unsupported and unhelpful.

4. Sufficiency was governed by the author’s own intellectual creation standard in Infopaq International A/S v Danske Dagblades Forening. Free and expressive choices were required. Relevant contributions had to be assessed cumulatively and in context against the relatively undemanding threshold. Separately testing whether each contributor’s input would itself attract copyright was unsuitable as an all-purpose test because joint contributions were inherently non-distinct. Ultimate control did not exclude joint authorship, but could bear on collaboration and the allocation of unequal ownership shares.

5. Successive drafts could be analysed separately as derivative works or holistically. On a separate-draft analysis, an earlier collaboration would not itself establish joint authorship of a later derivative work created solely by one author. However, the case had been managed on the agreed footing that earlier contributions carried into the final screenplay could support Kogan’s claim. The unpleaded argument confining authorship to changes producing the final draft should therefore have been excluded.

6. The observations in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd and Blue v Ashley justified careful assessment of memory, rather than disregarding sworn evidence. The judge had omitted essential findings about collaboration, treated documents selectively and undervalued potentially authorial contributions. Those errors could affect the result. The Court of Appeal could not supply the missing primary findings, making a retrial necessary.

7. The estoppel appeal became academic when Kogan abandoned relief restricting public performance. The retrial would proceed on the basis that the limited estoppel succeeded. The film companies could argue for a wider defence against other relief, without any view being expressed on its prospects. Kogan could rely on all her contributions, acknowledging limited involvement after the third draft, but could not revive her unpleaded legal answer to the defence.

• Court of Appeal (Civil Division): In Kogan v Martin & Ors (Rev 1), [2019] EWCA Civ 1645 , allowed Kogan’s appeal, set aside the declarations and other orders, and ordered a new trial before a different judge in the Intellectual Property Enterprise Court.
• High Court, Intellectual Property Enterprise Court: HHJ Hacon, [2017] EWHC 2927 (IPEC) , declared Martin the sole author and copyright owner of the screenplay. He also found that an estoppel would prevent Kogan from restricting public performance of the film. Henderson LJ granted permission to appeal.