Guidance on Copyright – Joint Authorship considered in Court of Appeal

Joint authorship in the Copyright Act was considered at length in the Court of Appeal in Martin v Kogan which is very useful for Intellectual Property rights.

Brief background

An opera singer, Ms Kogan who had a relationship with a gentleman called Mr Martin had supposedly suggested to write a screenplay which had specific aspects such as basing it the story of Florence Foster Jenkins and other significant contributions such as the character and the dialogue even though it was Mr Martin that wrote the screenplay. This meant that Ms Kogan claims that the works were co-written and that she is a co-author.

This was naturally a point which Mr Martin disagreed with and in turn argued that Ms Kogan was never a part of the screenplay works. Specifically, he said that Ms Kogan had never contributed to any of the works that she claims or even did Ms Kogan contribute in any way to the structure of the film. It was initially held in 2017 that Mr Martin was successful and was considered by the court to be the sole author. However, Ms Kogan appealed this decision and took it to the Court of Appeal.

Court of Appeal Decision

Although it was Mr Martin who was the sole author in the eyes of the Intellectual Property Enterprise Court (IPEC), the Court of Appeal had to now consider whether there were any grounds to grant co-authorship rights to Ms Kogan. It was held that “is entirely realistic to suppose that a reconsideration of all the evidence would show that Ms Kogan’s contribution was indeed made as part of a collaboration and passed the quantitative threshold for joint authorship”. This meant that the Court of Appeal allowed the appeal and the previous decision was set aside.

Why?

The much-needed guidance was provided by the Court of Appeal and broken down neatly into the following points:

  1. Joint authors must be authors, in the sense that they must have contributed a significant amount of the skill which went into the creation of the work. Again, it is not correct to focus exclusively on who fixed the work in writing.
  2. There will be a collaboration where those people undertake jointly to create the work with a common design as to its general outline, and where they share the labour of working it out.
  3. Derivative works do not qualify. Works where one of the presumed authors only provides editorial corrections or critique, but where there is no wider collaboration, do not qualify. In addition, ad hoc suggestions of phrases or ideas where there is no wider collaboration do not qualify.
  4. In determining whether there is a collaboration to create a literary or artistic work it is never enough to ask, “Who did the writing?”. Authors can collaborate to create a work in many ways. For example, there may be joint authorship if one person creates the plot and the other writes the words, or if either or both types of labour is shared.
  5. The question of what is enough of a contribution is to be judged by the Infopaq test, i.e. whether the supposed joint author has contributed elements which expressed that person’s own intellectual creation. The essence of that term is that the person in question must have exercised free and expressive choices. The more restrictive the choices, the less likely it will be that they satisfy the test.
  6. The fact that one of the authors has the final say on what goes into the work may have some relevance to whether there is a collaboration but is not conclusive. The author with the final say must be given credit in deciding on the relative proportions of ownership, for the extra work involved in making those choices.

The Court also ensured that it was clear that the respective shares of joint authors are not required to be equal, but can reflect, pro rata, the relative amounts of their contributions.

This new guidance will assist with all those who claim that they have joint ownership of works but are concerned that they do not have enough supporting material be realistic in a claim should it arise.

For further guidance and information on joint authorship and the Martin v Kogan Court of Appeal hearing or to see the full hearing via video, please visit:

Judicial source

https://www.judiciary.uk/publications/martin-and-another-v-kogan-and-others/

Other source

https://www.keystonelaw.com/keynotes/new-guidance-on-works-of-joint-authorship-under-the-copyright-act

https://www.gov.uk/guidance/ownership-of-copyright-works

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