Contributors
The dispute between Julia Kogan and Nicholas Martin, over whether Ms Kogan is a joint author of the screenplay for the film 'Florence Foster Jenkins' (the "Screenplay") about the eponymous soprano and socialite, has been the subject of a further judgment by the Intellectual Property Enterprise Court ("IPEC"), following a retrial after it was remitted back by the Court of Appeal.
Although the IPEC determined Ms Kogan could not prevent the film from continuing to be distributed, the judge did find in her favour, awarding her a 20% stake in the authorship of the Screenplay, despite the fact that her direct contributions to the final draft were limited.
The Court of Appeal's reversal
In October 2019, the Court of Appeal overturned the decision of HHJ Hacon (our briefing on the initial decision made in November 2017 can be found here).
In the first IPEC judgment, HHJ Hacon had accepted that Ms Kogan (a professional opera singer) possessed detailed knowledge of musical terms, scores and the characters upon which the film was based. He also found that she had provided constructive review, suggestions and criticism in relation to earlier drafts to Mr Martin (a scriptwriter), with whom Ms Kogan was in a romantic relationship at the time. However, the judge did not consider, whether from either a qualiative or a quantitative standpoint, that such a contribution had been sufficient for her to be treated as a joint author in the creation of the final version of Screenplay.
Upon appeal, the Court of Appeal ruled that the judge had not given proper regard to the broad sweep of the intellectual creativity of Ms Kogan's contribution and that he had focused his analysis too narrowly on the final version of the Screenplay, without taking sufficient account of the contribution to earlier drafts. Bearing in mind that a film's script is more akin to a dramatic work than a literary work, the Court of Appeal also criticised the judge for, when he was considering who were the author(s), he had placed far too much weight on the identity of the person who 'wrote' the work and/or had editorial control.
The Court of Appeal set out principles for addressing the issue of joint authorship[1] and then remitted the dispute back to the IPEC for a different judge to apply these principles to the facts of the case for the purpose of assessing whether Ms Kogan was a joint author of the Screenplay and, if so, what was her respective share.
The IPEC decision upon retrial
The retrial, which took place in November 2020 before Mr Justice Meade with judgment being handed down on 11 January 2021[2], followed the principles laid down by the Court of Appeal that had been distilled into the following seven issues at an earlier hearing:
Issues 1 & 2: Whether there was a collaboration between the parties and its nature was that of a common design
The judge held that, although the couple had not planned in detail the allocation of work and that it was understood that Mr Martin would 'hold the pen' and have 'the final say', the close and iterative manner in which the project developed showed that the couple knew they were on the path to creating a screenplay.
In all probability, if he had been quizzed at the inception of the project, Mr Martin would have disputed that he was creating a work of joint authorship. Nevertheless, as the Court of Appeal has ruled, the subjective intent of the parties is irrelevant. Although Ms Kogan's involvement was mainly focused on the earlier drafts and declined significantly by the time Mr Martin came to write the Screenplay and the film went into production, there had been a 'common design' between the parties as to general outline and a sharing of labour.
Issue 3: What was the nature of Ms Kogan's contribution
In addition to Ms Kogan having the initial idea of a film about Florence Foster Jenkins, the judge found that she had provided further ideas, as well as detailed knowledge and suggestions about musical content, characters, musicality, feeling and main events. He ruled that her contribution went much further than her just being used by Mr Martin for editing purposes and as a sounding board.
Issues 4 & 5: Whether Ms Kogan's contribution was authorial and an expression of her own intellectual creation
The Part 20 Defendants (the "Film Companies"), being the companies that optioned the Screenplay from Mr Martin (whose name alone had appeared on the various drafts) and who had then financed and produced the film, submitted that if the type of contribution as made by Ms Kogan was found to be authorial, this would adversely impact on the film industry. They argued that a precedent would be set such that 'mere researchers' could claim co-ownership of a screenplay.
The judge rejected this submission on the facts. He held that Ms Kogan had discharged the burden of proof required under section 104 of the Copyright, Designs and Patents Act 1988, in showing that her contribution went beyond being just a sounding board providing editorial corrections or critique; new law was not being made. In accordance with the Infopaq[3] test, her contribution expressed her own intellectual creation as derived from her making of free and expressive choices. On the facts, her contribution was neither mechanical nor constrained.
Issue 6: Whether her contribution was indistinct from that of Mr Martin's work
The assistance that Ms Kogan gave on characterisation and musicality ran right through the whole film and it was impossible to separate her contribution from the work being done by Mr Martin – "Trying to separate them would be like trying to unmix purple paint into red and blue" (Mr Justice Meade, paragraph 323).
Issue 7: What was the share of Ms Kogan's contribution
The shares of joint authors need not be equal. In these circumstances, the judge assessed her contribution towards the creation of the Screenplay at 20%.
Estoppel and relief
Ms Kogan had delayed raising her claim against the Film Companies and, when she did so, it was for some time unclear what relief she was actually seeking from them. She had known that in his dealings with the Film Companies, Mr Martin had presented and held himself out consistently as the sole author. It was also not disputed that, at the time of these negotiations and subsequently when considerable investment had already been put into the making of the film, she was aware of the importance to the Film Companies of copyright clearance. It was not until 24 April 2015 that a letter before action was sent on her behalf to them under which she gave notice that she no longer consented to Mr Martin's exploitation and progression of the Screenplay and the film without payment to her or without her receiving credit as a co-author of the Screenplay.
The parties agreed that, for Ms Kogan to be estopped as against the Film Companies, it would be necessary to show it would unconscionable for her to seek relief if:
- she knew that they believed that they could commercialise the film without interference from her
- they had relied on such a belief
- they incurred a detriment as a result of such reliance.
Without making any finding as to whether the Film Companies had infringed her copyright, the judge held that such a defence of estoppel was made out and she was thus restrained from seeking (i) an injunction against the Film Companies or any other restriction on the manner in which they may distribute the film, and (ii) any financial relief against them, save that they were ordered pay to her 20% of whatever future monies come due from them to Mr Martin.
By consent, the Film Companies agreed to give Ms Kogan an appropriate credit as an author on the IMDb database.
With regard to Mr Martin, the judge held that he and his company did infringe her copyright as from March 2015 – the date when she had first informed him that she was withdrawing her consent from the future exploitation of the Screenplay.
Comment
The decision is confirmation that the test for what constitutes joint authorship in copyright cases is far less rigid and formalistic than perhaps might had been previously considered to be the case. Even in the absence of any contemporaneous notes by the parties as to what are intended to be their respective contributions or work allocations, a finding of co-ownership might be readily established.
The dispute will now proceed to the stage of assessing what is due to Ms Kogan for her 20% share. Sadly, as with any relationship breakdown that ends up unresolved and being fought out before the courts, it is probable that the legal expenses might be far in excess of any recoverable financial award.
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[1]Kogan v Martin & Ors [2019] EWCA Civ 1645, paragraph 53.
[2]Martin & Or v Kogan [2021] EWHC 24 (Ch)
[3] Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569; [2009] ECDR 16; [2010] FSR 20
