Court rules in favour of script editor in dispute with opera singer former partner.

The film Florence Foster Jenkins, starring Meryl Streep and Hugh Grant, was released in May 2016. Unfortunately for the creators, the film has been the subject of a joint authorship claim between opera singer Ms Julia Kogan and writer Mr Nicholas Martin over who wrote the script.

Martin and Kogan lived together as partners when Martin began writing the script. Kogan claimed that she contributed to the dialogue and suggestions of themes or scenes. But, by the time Martin produced the final version of the script, the couple had separated. Martin was credited as sole author. He subsequently applied to the court to confirm his rights as the sole author, and to reject Kogan’s joint-authorship claims.

A work of joint authorship is defined in s.10(1) of the Copyright, Designs and Patents Act 1988 as a work ‘produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors’. There are three elements to satisfy in a joint authorship claim: 

- collaboration between two or more authors

- absence of distinction in contributions

- (implied) the contributions need to be sufficient.

The Court noted that Kogan’s claim of joint authorship in the screenplay failed to meet the collaboration requirement. At the time Martin finalised the script, they were no longer living together – and Kogan had not seen or given her opinion on the final version. This alone was enough for the Court to dismiss the argument that there had been collaboration. 

Regarding the question of ‘sufficient contribution’ to the work, the Court found that Kogan’s textual and non-textual contributions ‘never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions’. Those contributions ‘were not sufficient to qualify Ms Kogan as a joint author of the screenplay’.

The court concluded that Martin was entitled to a declaration that he was the sole author of the screenplay. He had not infringed the copyright.

In setting out its guidance, the Court confirmed that no distinction should be drawn between types of contributions (and skill) forming part of the creation of a work. In literacy works, primary skills relate to ‘the selection and arrangement of words in the course of setting them down’ and secondary skills apply to ‘inventing the plot and character’. Both should be considered. That said, for evidential reasons, it would be harder to establish joint authorship by reference to secondary skills alone. There may also be questions around defining primary/secondary skills in future cases, which may be ambiguous – despite the Court’s guidance.

For more information, please contact Nick Lewis.

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