Florence Foster Jenkins case – IPEC re-writes script on joint authorship of screenplays

Posted: February 15, 2021

The Intellectual Property Enterprise Court has found joint authorship of the screenplay for the film Florence Foster Jenkins.[1]  In a retrial, Meade J applied principles set out in the decision of the Court of Appeal and concluded that Julia Kogan made an authorial contribution to the screenplay that merited a 20% share of the copyright. 

Accordingly, Nicholas Martin had infringed her copyright from the date when she withdrew her consent to dealings with the screenplay.  Yet the producers and financiers of the film were held to have a substantive defence of estoppel that shielded them from liability to Ms Kogan, as long as they pay her for her share prospectively.

Comment

The Court of Appeal’s decision in this case provided helpful guidance on how to determine whether someone is a joint author of a copyright work.  In his judgment, Meade J has shown how those principles can be applied in practice to determine joint authorship of a screenplay, and to assess the respective overall contributions of the collaborating writers.

Film and TV producers are often concerned about the contributions of early-stage contributors to development.  This case provides some clarity on when a contribution can amount to joint authorship, and the success of the film companies’ estoppel defence may provide some comfort to producers and financiers.  But to avoid any ambiguity it is always best to ensure that clear commercial terms and IP assignments containing the appropriate warranties and indemnities are in place from the outset of the development stage. 

The film companies had argued that, if the IPEC found in favour of Ms Kogan, there would be a risk to investment in screenplays purportedly written by one person, in case they later turn out to be works of joint authorship.  Meade J rejected this, stating that he was only applying the Court of Appeal’s principles to assess joint authorship and not creating any new principles.  Meade J commented that such risk already existed and is managed by due diligence, dealing with reputable authors, warranties and indemnities, and acting responsibly if any issues arise.  This case turned on its specific facts that led Mr Martin to believe he was the sole author, and Ms Kogan did not come forward until the last minute.  

The film companies also argued that there was a risk that any mere “sounding board” or researcher could become a joint author.  Meade J rejected this on the basis that the facts were such that Ms Kogan was much more than a “sounding board” or researcher: she was inextricably involved in the development of character and plot, and that was what led to her joint authorship. 

It remains to be seen whether Meade J’s decision might encourage more alleged joint authors to come out of the woodwork.  Still, the moral of the story for contributors is to assert their rights as soon as possible, or else they may find that their potential remedies are limited.

Juliane AlthoffAssociate Solicitor, Simkins LLP

Dionne Clark, Trainee Solicitor, Simkins LLP

To read the full article, click here.  Written for Entertainment Law Review.

To read our earlier bulletin about the case, click here.


[1] Martin and another v Kogan and others [2021] EWHC 24 (Ch).