Authors, designers or other creatives working together on a project is common-place in many industries. However at what point do these contributions give rise to claims from individuals that, along with the primary author, their contributions make them joint authors of a piece of work?
The recent High Court case of Martin & Anor v Korgan & Ors (Florence), adjudicated on a dispute about the authorship of the screenplay of the film “Florence Foster Jenkins” starring Meryl Streep and Hugh Grant (the Screenplay), highlights the key points of English law to consider regarding joint authorship.
Background
The claimants, an established screenplay writer (Mr Martin) and his company, claimed sole authorship of the Screenplay. The defendant (Ms Kogan) claimed joint authorship of the Screenplay.
The first three drafts of the Screenplay were produced whilst Mr Martin and Ms Kogan were living together in a relationship. However this relationship subsequently broke down, meaning that the final version of the Screenplay was produced by Mr Martin without input from Ms Kogan. Ms Kogan’s claim of joint authorship centred on aspects of the first three drafts of the Screenplay having survived into the final version of the Screenplay, which she had written herself or on which she had made thematic suggestions to Mr Martin.
The law on joint authorship
Under section 10(1) of the Copyright, Designs and Patents Act 1988, a work of joint authorship is 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.
In applying the law to Florence the Court considered the following requirements:
- Was the work produced by a collaboration of two or more authors?
- Were the contributions of each author distinct?
- Where a person has contributed to the creation of a work in collaboration with another, is there a sufficient contribution to qualify as a joint author?
The Court’s analysis
In relation to Requirement 1, the Court noted that the final version of the Screenplay had been produced by Mr Martin after his relationship with Ms Kogan had ended, with evidence showing that the couple were no longer living together and had not discussed the final version of the Screenplay. As such the express requirement that the final version of the Screenplay be produced by a collaboration of two (or more) authors was not met.
Requirement 2, which relates to scenarios where distinct pieces of work are published in a compilation, was not in dispute and was not examined in detail by the Court.
In relation to Requirement 3, the Court examined whether Ms Kogan’s contributions to the previous drafts of the Screenplay were a “sufficient contribution” to qualify her as a joint author.
The significance of the contributions made by Ms Kogan were assessed in relation to the type of skill and labour which she employed, and which would be protected by the copyright in the Screenplay.
Primary and secondary skills
The Court considered a number of authorities relating to what could constitute a “sufficient contribution”, providing a useful summary on the relevant case law, dating back to 1921.
The Court considered that, in authoring a piece of work, there is the ‘primary skill’ of physically creating the work (e.g. holding and using the pen or brush) and the ‘secondary skill’ of directing the creation of the work (e.g. inventing plot and character, composition, selection of colour). It found that, when considering authorship, the test for demonstrating primary skill is more easily met, meaning that someone looking to rely exclusively on secondary skills would need to demonstrate that he or she had contributed a large amount of secondary skills in order to have made a sufficient contribution to be considered a joint author.
The Court found that secondary skills needed to go to the intellectual creativity of the work, and therefore minor amendments, such as through copywriting, or feedback, which did not create the original work, would not be sufficient.
Summary of factors that are not a “sufficient contribution”:
- Making contributions, such as scenic effects, that are not subject to the copyright protection afforded to the written material;
- providing expert advice and criticism on the written material;
- providing a highly-technical evaluation of, or ‘trouble-shooting’, an aspect of the written material; and
- suggesting minor amendments, such as to a stage play script regarding stage direction and presentation.
On the facts Ms Kogan was found to have:
- made some minor plot suggestions;
- provided some technical information to Mr Martin, in relation to musical terminology and history; and
- made some typographical corrections to the first three drafts of the Screenplay.
The Court therefore found that this was not a sufficient contribution for her to be considered a joint author of the Screenplay.
Conclusion
Florence is a helpful authority in summarising the case law on joint authorship and clarifying the threshold for contributors claiming joint authorship through secondary skills.
For creatives looking to collaborate on a project, making the distinction in a design brief between those who will be providing primary and secondary skills in creating a piece of work may be a helpful guide for collaborators on how their contributions will be treated regarding authorship.
The scope of what constitutes secondary skills may be tested in the courts in the future, especially as many of the qualities that fall under ‘creative direction’ would ordinarily be considered ‘ideas’ and would not thereby be protected by copyright.