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

People who work with others on, for example, a screenplay will welcome clarification from the Court of Appeal on when they can claim joint authorship of the work.

An unmarried couple, one who worked as a scriptwriter and the other as an opera singer, worked together on early drafts of a screenplay for a film (the ‘work’). However, the opera singer only brought the story to the scriptwriter’s attention and provided musicians’ jargon, helpful criticism and minor plot suggestions.

She claimed she helped introduce various characters to the story, and certain scenes, but the scriptwriter denied this.

The couple split up before the work was finished, and the scriptwriter carried on working on it alone. He was later credited as the sole author for copyright purposes when the screenplay became a successful film.

The opera singer claimed her contribution was creative and collaborative, and her help with early drafts meant she should be credited as joint author – entitling her to a proportion of the income from the film.

The High Court said the test for joint authorship of a work protected by copyright was:

• there had 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 others, so that there had 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 - this could be taken into account, but was not conclusive.

However, it ruled that the scriptwriter was the sole author for other reasons. She 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.

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

However, the Court of Appeal has ruled that the High Court’s approach was wrong in several respects and ordered a retrial. Particularly, it found that the High Court was wrong to say there was a high bar when deciding whether contributions towards plot and character entitled the contributor to be recognised as joint author of a dramatic work.

The Court of Appeal set out its view of the factors to consider when determining joint authorship, including:

• Joint authorship arises where the creators of a work collaborate to produce it, ie, they undertake jointly to create a work, follow a common design for its general outline and share the labour of working it out.
• However, it is irrelevant whether joint authors intended to create a joint work, and their rights can be joint without necessarily being equal – it depends on their respective contributions. It can be relevant, but is not conclusive, that one of the authors has a final say.
• Collaboration can take many forms – with a literary work it is not enough to ask who did the actual writing. However, each joint author must contribute a significant amount of the skill applied to create the work – the test is whether they have contributed elements which expressed their own intellectual creation.
• Whether a contribution is ‘authorial’ depends acutely on the nature of the work. However, if one of the authors provides only editorial corrections or merely critiques a work, that is not collaboration.

Operative date

• Now

Recommendation

• People working with others on a copyright work, such as a screenplay, should ensure each is clear on who owns intellectual property rights in the work – or risk a costly court claim.

Case law: Kogan v Martin [2019] EWCA Civ 1645