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Hitting the right note: update on joint ownership of copyright

Verity Ellis
14/01/2021

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United Kingdom

The Intellectual Property Enterprise Court (IPEC) has now handed down its judgment in the retrial of Kogan v Martin, resulting in Ms Kogan being formally recognised as a joint author of copyright in the screenplay for the film "Florence Foster Jenkins", which starred Hugh Grant and Meryl Streep. This is the second time the IPEC has reviewed this case, having been sent back to the IPEC by the Court of Appeal for a retrial due to a number of errors by IPEC in the first attempt.

Despite the convoluted history, this case provides a neat overview on the law on joint ownership of copyright works.

Reminder of the facts

Mr Martin produced a screenplay about the life of an opera singer, and the credits identified Mr Martin as the sole author. Mr Martin accepted that he had heard about the story from Ms Kogan, who had acted as a sounding-board during their romantic relationship.

Ms Kogan claimed that she was more than just an attentive partner, and that she was a co-author who had worked with Mr Martin in developing the drafts and contributing to ideas about the characters, dialogue and plot.

Round Three – Intellectual Property Enterprise Court (again)

(For an overview of rounds one and two, please see our earlier blog, Two can play at this game: Joint ownership of copyright.)

The Court of Appeal had found that Ms Kogan’s contribution may indeed have been made as part of a collaboration and passed the quantitative threshold for joint authorship. The IPEC retrial agreed with this suggestion, and found Ms Kogan to be a 20% joint author of the screenplay. (For details of the judgment, see [2021] EWHC 24 (Ch).) It was held that she was more than a sounding board to Mr Martin, and contributed "input of central importance to central characters".

The IPEC retrial specifically referred to the Court of Appeal's summary of elements to consider in relation to joint ownership of copyright, which are set out in our earlier blog.
 
Comment

Perhaps unsurprisingly, IPEC followed the Court of Appeal's inference that Ms Kogan should be held to be a joint author. While this IPEC decision may be the denouement, it is the Court of Appeal's judgment that remains the most important twist in the tale and is likely to be referred to in the future when considering matters of joint authorship.

Issues of quantum were not considered at this trial, and Ms Kogan's financial compensation will be decided separately. We will monitor any developments in relation to this aspect.
 

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