Martin & Anor v Kogan

Joint authorship of a screenplay does not depend on who typed the words or had the final say. The question is whether the parties collaborated with a common design and shared the labour of creating the work, making authorial contributions which express their own intellectual creations and are not distinct.

Ideas, plot, characterisation and musicality may form part of an authorial contribution to a dramatic work. A mere researcher, sounding board, proof-reader or provider of technical jargon will not ordinarily qualify, but a close and iterative contribution integrated into the screenplay may do so.

Joint authors’ shares are presumed equal, subject to agreement or circumstances justifying a different allocation based broadly on the relative contributions. Estoppel may restrict relief without extinguishing the underlying copyright interest.

The claim concerned authorship of the screenplay for Florence Foster Jenkins. Nicholas Martin claimed to be its sole author. Julia Kogan counterclaimed for declarations that she was a joint author and copyright owner, together with infringement and moral-rights relief. The Film Companies resisted her claim and relied on estoppel, acquiescence and consent.

The trial was a retrial ordered by the Court of Appeal after HHJ Hacon’s 2017 IPEC decision. The retrial had to determine whether there had been a collaboration, the nature and authorial quality of Ms Kogan’s contribution, whether it was an expression of her own intellectual creation and distinct, the parties’ relative shares, and the effect of consent and estoppel on relief.

1. Joint authorship. The court applied the Court of Appeal’s formulation of the law. A collaboration existed where the parties jointly pursued a common design as to the general outline of the screenplay and shared the labour of working it out. No subjective intention to create joint authorship was required. The fact that Mr Martin held the pen and had the final say was relevant but not conclusive.
2. Ms Kogan contributed the initial concept, characterisation, musicality, plot and scene development, musical terminology and material dialogue. Her contribution went beyond research, criticism, proofing or encouragement. It was closely and iteratively integrated into the screenplay. The contribution was authorial, expressed her own intellectual creation and was not distinct from the work as a whole.
3. The court rejected an approach that treated plot and character as secondary to written words. A screenplay is a dramatic work whose value may lie substantially in the choice and arrangement of incidents, situations, plot and character.
4. There was a presumption in favour of equal shares between joint authors, subject to agreement or circumstances justifying a different allocation. The assessment was necessarily broad and subjective, but could reflect the relative amounts of the parties’ contributions. Ms Kogan’s share was assessed at 20 per cent.
5. The court found that Ms Kogan had consented to the Claimants’ dealings until 16 March 2015, when consent was withdrawn. The Claimants infringed thereafter. The Film Companies established the elements of estoppel and had acted to their detriment in reliance on the apparent position that Mr Martin was the sole author. Estoppel prevented an injunction, restrictions on distribution and financial relief against them, subject to payment of 20 per cent of future sums owing to Mr Martin and an appropriate IMDb credit. It did not prevent a declaration of authorship.
6. The Film Companies’ broader concern that the decision created a new risk for investors was rejected. The decision applied established principles to its unusual facts.

1. Court of Appeal: allowed the appeal from the 22 November 2017 IPEC judgment of HHJ Hacon, set aside the declarations and orders, and remitted the case for a retrial before a different judge.
2. High Court (Chancery Division): on retrial, found Ms Kogan to be a joint author with a 20 per cent share, subject to the findings on consent and estoppel.