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Kogan's coda? Assessment of credit for joint owners of copyright

Verity Ellis
26/05/2021

Locations

United Kingdom

The Intellectual Property Enterprise Court (IPEC) has recently handed down a further judgment in the case of Kogan v Martin.

This decision focuses on what is appropriate credit for each joint author of a copyright work, here being Mr Nicholas Martin and Ms Julia Kogan in relation to the screenplay for the film "Florence Foster Jenkins".

IPEC retrial

At the IPEC retrial (following an order by the Court of Appeal due to issues with the original IPEC hearing), it was held that Ms Kogan was a 20% joint author of the screenplay. It was also ordered that she should be given appropriate credit on IMDb to reflect her contribution. (See Hitting the right note: update on joint ownership of copyright and Two can play at this game: Joint ownership of copyright for our previous blogs.)

IMDb credits

Further argument arose around the format of Ms Kogan's credit on IMDb, the popular online database of information related to films, television programs and other content.

The credit was proposed to read "Nicholas Martin (written by)" and "Julia Kogan (written by) (originally uncredited)".

As part of the assessment, the judge, Mr Justice Meade, considered the IMDb rules, Writers Guild of American (WGA) and Writers Guild of Great Britain (WGGB) guidelines.

Mr Martin argued that Ms Kogan's contribution (assessed at 20%) was too small to get any "written by" credit, and a "story by" credit would be more appropriate. Both these points were rejected by Meade J. It had been held at trial that Ms Kogan's contribution went beyond just the story. Further, the guidelines allow for teams to be credited.

Meade J noted that the WGGB guidelines were most relevant in the case, given that the case revolved around UK copyright, although the others were still helpful to consider. It was highlighted that the WGGB guidelines do not contain hurdles relating to specific % contributions, although a "substantial written contribution" is required for a "Screenplay by" credit.

Since it was held at trial that Ms Kogan did very little writing, unhelpfully for Ms Kogan the WGGB Guidelines state that a "Written by" credit requires that the same person undertook both the screenplay and the story.

However, despite the latter point, overall Meade J held that the current credit was sufficient and should remain as drafted. Even though Ms Kogan's contribution may not have involved much writing itself, it still went beyond simply trivial and being placed as the second credit implied that she was the lesser contributor. (See [2021] EWHC 1242 (IPEC) for his judgment.)

Final note

The consideration of the format of authorship credits appears to be a first for the English courts, and demonstrates a willingness to consider issues outside the usual legal questions and provide parties certainty on more abstract points.

With only the damages assessment outstanding, perhaps the curtains are now finally coming down on this case.

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