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Case law: Court clarifies when person can claim joint authorship of copyright material

People working with someone else on a copyright work, such as a screenplay, can only claim joint authorship if their contribution is made at the time the work is created, amounts to joint intellectual creation of the work with the other person, and is more than mere feedback or useful suggestions, a ruling makes clear.

February 2018

This update was published in Legal Alert - February 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An unmarried couple, one of whom worked as a scriptwriter and the other as an opera singer, worked together on early drafts of a screenplay (the 'work'). The opera singer only provided musicians' jargon, helpful criticism and minor plot suggestions. The couple split up before the work was finished, and the scriptwriter carried on working on it alone. He was credited as the sole author for copyright purposes when the screenplay became a successful film. The opera singer claimed that her contribution to the early drafts meant she should be credited as joint author and was entitled to a proportion of the scriptwriter's income from the film.

The High Court set out the test for joint authorship of a work protected by copyright:

  • there has been genuine collaboration (ie. common design by the authors at the time the work was created) to create the work
  • each author's contribution was not distinct from that of the other's, so that there has been joint intellectual creation of the work, and
  • the contribution was sufficient

The Court rejected the scriptwriter's argument that he was the sole author simply because he had the final say as to what went into the screenplay. It said that this could be taken into account but was not conclusive.

However, it went on to find that the scriptwriter was the sole author for other reasons. The opera singer had not 'genuinely collaborated' on the work because there had been no common design between her and the scriptwriter at the time the work was created as she had no longer been involved at that stage.

It also ruled that her role was distinct from the scriptwriter's role. The test was whether, if only the parts she had written were copied, would that, on both a quantitative and qualitative assessment, breach copyright in the whole screenplay. An example question was, if a second person has added a scene to a screenplay written by someone else, the second writer could not claim to be a joint author of the entire screenplay as there was no collaboration and common design at the time the work was created.

In any event, it said that merely providing suggestions, critical feedback, or even minor editing, was not a sufficient contribution to amount to joint intellectual creation of the work with the screenwriter.

Operative date

  • Now

Recommendation

  • People working with someone else on a copyright work such as a screenplay can only claim joint authorship if their contribution is made at the time the work is created, amounts to joint intellectual creation of the work, and is more than mere feedback or useful suggestions

Case law: Martin v Kogan [2017] EWHC 2927

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