Hitting the right note: what is enough to be a joint author in copyright?
The IP Enterprise Court has recently considered the question of what constitutes sufficient contribution to qualify a party as a joint author of a copyright work. It is often the case that more than one party is involved in the creation of a work, and it can be a fine line between a party's mere support and purposive input that requires acknowledgment.
Background
The case of Martin v Kogan [2017] EWHC 2927 (IPEC) revolved around the screenplay for the film "Florence Foster Jenkins", which was the story of the aforementioned American heiress-come-opera singer. In the film credits, Nicholas Martin is identified as the sole author of the screenplay. Since 2014, Mr Martin's ex-partner Julia Kogan had been claiming joint-authorship rights. It was not disputed that the screenplay was written during the time the two lived together and that they frequently discussed the project.
Mr Martin applied to the court to seek a declaration that he was the sole author in the final version of the screenplay being the relevant copyright work (the "Work"). In return, Ms Kogan counterclaimed for a declaration of joint-authorship and joined the production and financing companies for the film as joint defendants, on the basis that they had infringed her copyright.
There were three drafts before the final work was written. The case of joint authorship hinged on whether Ms Kogan's contributions to the first three drafts were included in the Work, which was written after the couple had separated.
Decision
Hacon J held that there was no collaboration between Mr Martin and Ms Kogan in creating the Work itself, (although the case may have been different for previous drafts of the screenplay), and helpfully set out the following which summarises the current law on joint authorship of copyright (at paragraph 54):
- 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 work in issue was created, which led to its creation.
- The contribution of each author must not be distinct from that of the other author or authors.
- 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.
- 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.
- 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.
- 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 would result in an infringement of the copyright, the contribution constitutes a substantial part of the whole.
- 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.
- 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.
- It is thus relevant, but not decisive, whether an author is the ultimate arbiter as to the content of the work.
- If joint authorship is established, the court may apportion ownership of the copyright.
Hacon J also highlighted the importance to rely on documentary evidence (and any inferences from these) as opposed to witness recollection (paragraph 61).
Practical considerations
A number of practical points can be gleaned from this decision. Most important is the reminder to carefully document any contributions to a potential copyright work in writing.
This judgment also provides useful commentary on what may be enough to raise the issue of joint authorship. Previous case law has held that providing criticism, proof-reading or small edits is not enough to demonstrate collaboration, nor would a third party's consent to the use of their material within a new work be enough to render them a joint author in that new work.
Hacon J supported this by drawing a new distinction between "primary skills" (e.g. physically writing) and "secondary skills" (e.g. inventing plots). Whilst this division is not creating a hierarchy in the skills involved in creative processes, he commented that joint authorship would be found easier for contributions involving primary skill. Whilst it is possible in relation to secondary skill, a larger contribution may be needed.
Comment
Interestingly, Hacon J noted that the position may have been different if Ms Kogan had claimed joint authorship in the third draft, and that the final version infringed the copyright in that earlier draft.
This case provides an insightful overview of this area, together with a clear warning to carefully consider how to put together a claim or defence and to explore all different avenues that may be available.