Hitting the right notes – Florence Foster Jenkins provides helpful guidance on joint ownership of copyright

It’s not often that IPEC decisions rival the drama of the silver screen, but the recent decision from Hacon J regarding the film Florence Foster Jenkins provided plenty of drama, as well as a handy ten point guide on joint ownership of copyright.

The case concerned a dispute between Nicholas Martin and Julia Kogan regarding the ownership of copyright in the screenplay for the film. Mr Martin is a professional scriptwriter, and was credited as sole author of the screenplay when the film was released. Ms Kogan, an opera singer, made various contributions to the development and writing of the screenplay which she felt gave her a right to a share of the copyright in the screenplay as a whole. The parties were in a relationship and living together for much of the time that screenplay was being written, though their relationship came to an end before the final draft was produced.

The court found that Ms Kogan made a number of textual and non-textual contributions to the screenplay, but that these ‘never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions.’ Ultimately, these were not sufficiently substantial and not of the right nature to attract copyright protection.

In reaching that decision, Hacon J set out the following ten principles drawn from the existing case law which help to determine when a work will be considered the work of joint ownership:

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.

Whilst none of these principles are new, when collected together like this they form a handy ten-point guide which should be useful for future reference.

Less significant, though perhaps more intriguing, is a comment made in the decision which suggests that Ms Kogan’s case might have been more successful had she claimed joint ownership of the copyright in an earlier draft of the screenplay, rather than in the final version. One of the benefits of bringing a case based on an unregistered right (such as copyright, unregistered design right, or passing off) is that the claimant has more flexibility in defining the scope of the right. The clarity provided by a registered right can often be helpful, and save preliminary disputes around the scope of the right. However, there are circumstances where a claim might be more successful if the right can be defined once you know what the infringement looks like. It’s worth remembering that rights can be claimed in drafts of a creative work, particular features of brand and get-up, or aspects of a design, not just the complete and finished whole. Whilst registered rights are often key to protecting your IP, the value of more flexible unregistered rights should not be underestimated.

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