Joint copyright found in screenplay following a retrial

Posted: January 26, 2021

Following a retrial in Martin and another v Kogan and others [2021] EWHC 24 (Ch), the IPEC has found joint authorship of the copyright in the screenplay for the film “Florence Foster Jenkins”.

Film and TV producers are often concerned about the contributions of early stage contributors to development.  Whilst this case provides some clarity on when a contribution can amount to joint authorship in the context of copyright in a screenplay, clear-cut IP assignments remain best practice. 

Background

Nicholas Martin, a professional writer of film and television scripts, lived with Julia Kogan, an opera singer.  During this time, the idea arose for a screenplay about the life of Florence Foster Jenkins, a socialite opera singer, and early drafts of the screenplay were created.  Mr Martin produced the final version of the screenplay after the parties’ relationship had ended and was credited as the sole author.  Ms Kogan sought a share of Mr Martin’s income from the film and Mr Martin sought a declaration from the court that he was the sole author of the screenplay.  

Initially, the IPEC accepted Mr Martin’s submission that each draft should be treated as a separate copyright work and held that there had been no collaboration in creating the final version of the screenplay, leading to the conclusion that Ms Kogan was not a joint author.  Ms Kogan appealed, and the Court of Appeal ordered a retrial on the basis that, in the circumstances, the court had been wrong to restrict its analysis to the final version of the screenplay and had erred in its approach to the evidence and its assessment of Ms Kogan’s contribution. 

Decision

The retrial was heard by a different judge in the IPEC.  He found that Ms Kogan had the original idea for the screenplay and, while Mr Martin had the final say, she had made suggestions to the plot, dialogue and characters based on her feeling for the musicality of the screenplay and understanding of opera.  In the first trial, the court had considered Ms Kogan’s contributions to be technical and minor.  However, at the retrial, the court found that her contributions were highly creative and both authorial and an expression of her own intellectual creation.  The characterisation and musicality ran throughout the film and Ms Kogan’s contribution could not be separated from Mr Martin’s.  Accordingly, Ms Kogan was a joint author of the screenplay.

The court then had to determine the parties’ respective shares in the screenplay and noted that this was a highly subjective decision that it was appropriate to approach on a broad-brush basis.  The court divided the development of the screenplay into two periods: (1) the initial development of the treatments, during which Ms Kogan’s input was significant but under half; and (2) the period afterwards, including when Mr Martin wrote the final version of the screenplay, during which Ms Kogan made similar contributions but on a much smaller scale.  The effort involved in the final version was considerably greater than in the earlier period and it was undertaken much more by Mr Martin.  This justified unequal shares and Ms Kogan’s contribution was held to be 20%.

Relief

Ms Kogan had originally consented to dealings with the screenplay but had withdrawn her consent.  The court held that Mr Martin had infringed Ms Kogan’s copyright after the withdrawal, and she was entitled to an inquiry as to damages or an account of profits for the period that followed.  Ms Kogan was also entitled to an appropriate declaration and credit on IMDb as to her authorship.

Ms Kogan had sought relief from the companies that produced and financed the film (the Film Companies).  The Film Companies raised defences of estoppel and acquiescence on the basis that Ms Kogan had watched the production of the film and, at least indirectly by silence, represented that she had no right to stop the Film Companies’ activities.  It was relevant to unconscionability that Ms Kogan knew the Film Companies believed they had the ability to commercialise the screenplay, and she had fostered that belief by encouraging Mr Martin to commercialise the screenplay in his own name.  Accordingly, Ms Kogan was estopped from seeking: (1) an injunction against the Film Companies; (2) to restrict the ways in which the film was distributed; or (3) financial relief from the Film Companies, provided that they paid her 20% of anything owed to Mr Martin in the future. 

Comment

The Court of Appeal decision in this case provided helpful guidance on how to determine whether someone is a joint author of a copyright work.  The retrial has now shown how those principles can be applied in practice to determine joint authorship in relation to the copyright in a screenplay, and to assess the respective contributions of the collaborating joint authors.  

The success of the Film Companies’ estoppel defence may provide some comfort to producers and financiers, but it is always best to ensure that clear commercial terms and IP assignments are in place at the outset of development.

Eleanor Steyn, Partner, Simkins LLP

Dionne Clark, Trainee Solicitor, Simkins LLP