IP Insight: Copyright and Co-authorship

By Razvan Popa

BACKGROUND

Earlier this month, Mr Justice Meade issued his decision on the re-trial of Nicholas Martin and ors v Julia Kogan.

The case involved ownership of copyright in the script for the Florence Foster Jenkins drama. Mr Martin and Big Hat Stories Limited were looking for a declaration stating that Mr Martin was the sole author of the script. Ms Kogan, however, filed a countersuit for a declaration that she is a joint author and that the claimants infringed the copyright in the script. 

On 22 November 2017, HHJ Hacon found for Mr Martin and ordered Ms Kogan to pay the claimants’ legal costs. Ms Kogan appealed against this decision and Henderson LJ granted her permission to appeal.

APPEAL

On 9 October 2019, the Court of Appeal decided that:

“The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material matters and applied incorrect legal standards to the assessment of the sufficiency of Ms Kogan's contributions.”

Therefore, quite unusually, the Court of Appeal ordered that there must be a retrial.

RETRIAL

On 11 January 2021, Mr Justice Meade reached the conclusion that Ms Kogan was actually a joint co-author of the screenplay. As Mr Martin’s name appeared alone on versions of the screenplay, Ms Kogan bore the burden of proving she was a joint author.

Mr Justice Meade presented the evidence in a helpful chronological order, highlighting Ms Kogan’s contributions. He further stated that: “Ms Kogan contributed as a collaborator in terms of characterisation, musicality, choice of historical incident and musical terminology, especially earlier on, and Mr Martin was a participant in those respects but took over almost entirely in the actual writing and had the final say.” However, Mr Justice Meade added that “Ms Kogan  has been deliberately untruthful about whether she actually wrote the words of the screenplay in Final Draft”. There was further criticism relating to Ms Kogan’s description of her working with Mr Martin.

Mr Justice Meade held that Ms Kogan had the original idea of the screenplay and the couple created it together. Having looked in detail at the evidence, the judge stated that Ms Kogan’s contribution was 20%. The film companies that were also part of the proceedings were in substance successful in their defence of estopel. Ms Kogan consented to dealings with the screenplay but eventually withdrew her consent in 2015. From that point onwards, Mr Martin and his company infringed Ms Kogan’s copyright.​

OUR INSIGHT: MARTIN & ANOR v KOGAN [2021]

When ownership disputes arise clear legally defined relationships are always key. Within the area of intellectual property, this is especially so, as ownership is less clearly defined as a work comes into existence. For creators, should your ideas look like they are starting to grow into something more than just an idea - contracts which specify exactly who owns what will save a lot of cost, confusion and concern down the line.

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