The Court of Appeal has provided a helpful summary in Kogan v Martin on the law of joint ownership of copyright, recognising that author contributions do not need to be equal nor in the form of only written words, and can arise by intangible input whilst collaborating on plot or character development.
The case also discusses the different methods of analysing ownership of works that develop over a number of drafts, and how this can influence the outcome of a case.
Mr Martin produced a screenplay about the life of an opera singer, and the credits identified Martin as the sole author. Martin accepted that he had heard about the story from Ms Kogan, who had acted as a sounding-board during their romantic relationship.
Kogan claimed that she was more than just an attentive partner, and that she was a co-author who had worked with Martin in developing the drafts and contributing to ideas about the characters, dialogue and plot.
Round One – Intellectual Property Enterprise Court
In the Intellectual Property Enterprise Court (IPEC), the Judge held that each draft was a separate copyright work and, as there had been no collaboration between Martin and Kogan on the final version, that Martin was the sole author of the copyright in the screenplay.
In the first instance decision, the judge distinguished between primary (writing the work) and secondary (ideas on plot and character) skills. The judge held that depending on the category and size of the contribution to the overall work, this would impact whether formal authorship rights subsisted.
Round Two – Court of Appeal
Kogan appealed, and successfully overturned the first instance decision.
The division between primary and secondary contributions was swiftly dismissed by the Court of Appeal. Instead, a much simpler test was preferred, namely that an alleged joint author's contribution had to be of elements that were the expression of their own intellectual creation.
Having reviewed previous case law in this area, the Court of Appeal judgment helpfully listed the following summary of elements to consider in relation to joint ownership of copyright:
- Joint authorship involves collaboration.
- Collaboration means people jointly creating the work with a common design as to its general outline and sharing the labour of working it out.
- Derivative works do not qualify.
- It is never enough to ask "who did the writing?" when assessing collaboration to create a literary or artistic work.
- An author includes those who contributed significantly to creating, selecting or gathering together the detailed concepts or emotions that the words fixed in writing.
- Contributions that are not authorial did not count.
- The question of what was enough of a contribution was to be judged by the Infopaq test, that is whether the alleged joint author had contributed elements that expressed the person's own intellectual creation.
- The contribution of an alleged joint author must not be distinct from the other author(s).
- The authors do not need to have had a subjective intention to create a work of joint authorship.
- The fact that one of the authors had the final say is not conclusive. However, the author with final say must be given credit in deciding on the relative proportions of ownership, for the extra work in making those choices.
- Respective shares of joint authors can reflect pro rata the amounts of their contributions.
Treatment of multiple drafts
The case has also highlighted the two options to approach considering contributions to a work that is the result of several draft versions.
The first is to treat each draft as a separate (derivative) copyright work and the second is to treat the final draft holistically as a single work that required the totality of the skill and labour involved in producing all the drafts to produce it.
The approach taken in each case (as agreed at the case management conference) could be pivotal to the success of a claim over how different parties' contributions are assessed. This choice will be an important consideration for all parties to consider in the context of assessing authorship rights.
Back to the drawing board
Reluctantly, the Court of Appeal has ordered that there be a retrial of this case, holding that the judge made a number of errors at first instance. These included failing to make central findings of fact, applying the wrong approach to consideration of evidence and legal tests for joint ownership.
Now that this area of law has been reviewed and summarised by the Court of Appeal, we wait to see how this will be applied to the facts of this case once again at IPEC level.
This case highlights that authorship is more than the act of writing the words down on paper. Contributions to plot and character development are also important aspects that may result in recognition as a joint author of the copyright work.
The Court of Appeal also recognised that contributions can be intangible and indistinct, which may mean the courts are more accommodating to the parties claiming authorship rights.
Even though Kogan accepted that Martin was “the main writer and contributed considerably more”, her contribution was still formally acknowledged (albeit for a smaller portion of the total authorship). No doubt, the creative industry will welcome the acknowledgment of contributors as recognition that creatives rarely work in silos and that a successful work is often the culmination of many people's efforts.