Florence Foster Jenkins: When do textual and non-textual contributions give rise to joint authorship?

Simon Goodbody

The High Court ruled today that Lee & Thompson’s client, Nicholas Martin, was entitled to a declaration that he is the sole author of the screenplay for the award winning feature film, ‘Florence Foster Jenkins’ (“the Screenplay”).   The film, directed by Stephen Frears and starring Meryl Streep and Hugh Grant, was released in May 2016.

Mr Martin sought declaratory relief from the court following claims and threats of legal action by his former partner, Ms Julia Kogan, that she co-authored the work.

Mr Martin and Ms Kogan lived together during the period in which the idea for the Screenplay was conceived and early drafts of the work were written.  The parties discussed the project frequently.  Mr Martin accepted that Ms Kogan provided some feedback and criticism on his writing, contributed some technical language and information about the world of opera, and provided him with emotional support.  In addition, Ms Kogan said that she had selected scenes, characters and pieces of music to be included in the Screenplay, and claimed that she had written some (very limited) sections of actual text.

So, when do textual and non-textual contributions give rise to joint authorship?

A work of joint authorship is defined in s.10(1) of the Copyright, Designs and Patents Act 1988 as “…a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors…”. Domestic and European case law has considered the type and extent of the contribution necessary to establish joint authorship.  In delivering his judgment on 22 November 2017, Hacon, J. summarised the position in law as follows:

  1. 1. “…A party will be joint owner of the copyright in a work only if he or she (or in the case of a company, its employees) collaborated in the creation of the work. The collaboration must be by way of a common design, i.e. co-operative acts by the authors, at the time the copyright in issue was created, which led to its creation.

  2. 2.  The contribution of each author must not be distinct from that of the other author or authors. [If it is distinct they may be co-authors, rather than joint authors].

  3. 3.  Contributions by a putative joint author (including those done by way of collaboration) which formed no part of the creation of the work are to be disregarded in the assessment of joint authorship.

  4. 4.  No distinction is to be drawn between types of contribution that did form part of the creation of the work. In particular, there is no distinction which depends on the kind of skill involved in making the contribution.

  5. 5.  The contribution, assuming it is relevant to the assessment of joint authorship, must be sufficient. This depends on whether the contribution constitutes a substantial part of the whole of the work in issue.

  6.  6. That will be the case if the contribution would be protected by copyright in the work. Thus, if the contribution alone were copied by an unlicensed third party and such copying could result in an infringement of the copyright, the contribution constitutes a substantial part of the whole. 

  7. 7. The test of substantiality in the context of joint authorship of copyright, as in the context of infringement, involves a qualitative as well as quantitative assessment. 

  8. 8. Suggestions from a putative joint author as to how the main author should exercise his or her skill – for instance by way of criticism or editing of a literary work – will not lead to joint authorship where the main author has the final decision as to the form and content of the work.

  9. 9.  It is thus relevant, but not decisive, whether an author is the ultimate arbiter as to the content of the work.

  10. 10.  If joint authorship is established, the court may apportion ownership of the copyright…”.

     

Applying the law to the facts, the Judge found that the textual and non-textual contributions made by Ms Kogan “…never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions…” and that, taken together, those contributions “…were not sufficient to qualify Ms Kogan as a joint author of the Screenplay, even had those contributions all been made in the course of a collaboration to create the Screenplay…“.

Mr Martin’s claim was successful.  He is the sole author of the Screenplay.

An additional point, and one to watch out for in framing such claims, is that the Court ruled that even if Ms Kogan had made sufficient contributions to the early drafts (which she hadn’t), she could not claim to be a joint author of the final script given that it was developed by Mr Martin and the production companies without any involvement by Ms Kogan.  She might in theory have been able to claim that the final draft infringed the earlier drafts (by reproducing it) but that was not the claim she brought, and as a matter of fact she had no rights in the earlier drafts in any event.

 

Dominic Bray and Simon Goodbody, instructing Tom Weisselberg QC of Blackstone Chambers, acted for Nicholas Martin. 

If you need any help or advice in relation to issues raised in this article, you may reach Dominic at dominicbray@leeandthompson or Simon at simongoodbody@leeandthompson.com.