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The American socialite, the real opera singer and copyright
18 January 2018

Authored by: Bill Gornall-King and Grace Hudson

The film Florence Foster Jenkins released in 2016, starring Meryl Streep and Hugh Grant, documented the life of the famous American socialite who wished to become an opera singer but had an appalling voice. Authorship of the screenplay was attributed solely to Mr Nicholas Martin, a professional writer. However, Ms Julia Kogan, an opera singer and Mr Martin’s former partner, brought a claim in the High Court in London for joint authorship. She claimed that her feedback, criticisms, technical language and advice on music and characters contributed during the writing of the first three drafts of the script were sufficient to entitle her to joint authorship of the final screenplay. If successful, she would have been entitled to a proportion of the royalties from the film.

What is joint authorship?

Joint authorship is defined as 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 (section 10(1) Copyright, Designs and Patents Act 1988). 

The presumption is that joint authors will hold equal shares in the work, although this can be rebutted where the facts indicate that one author made a greater contribution than the other (Fisher v Brooker [2006]). Where joint authorship is established, one author cannot licence the copyright work without the permission of the other author(s). In theory, this would have meant that Ms Kogan was able to limit or refuse the licensing or distribution of the copyright work.

Sufficient contribution?

Ms Kogan had to show three things in order to be recognised as a joint author of the screenplay:

(i) the screenplay was a collaboration between herself and Mr Martin;
(ii) her contribution was not distinct from that of Mr Martin; and
(iii) she had made a sufficient contribution to the screenplay to qualify as a joint author by contributing a significant part of the skill and labour protected by copyright.

The court found that Ms Kogan’s “contribution would not be sufficient to qualify her as a joint author of the screenplay” as her contribution had not met the third requirement. Her contributions did not amount to a “significant and original contribution to the work” (Godfrey v Lees [1995]). This was supported by the judgment in Fylde Microsystems Ltd v Key Radio Systems [1998] which had held that although the defendant’s contribution had been technically sophisticated, had taken a lot of time and had been valuable, it did not constitute contribution to the authoring of the source code.

In part, the decision was due to the fact that Ms Kogan had only contributed to the first three versions of the script and she had no part in drafting the later versions that ultimately became the screenplay. Furthermore, throughout the whole process, Mr Martin remained the final arbiter of what was included, deciding whether or not Ms Kogan’s contributions should be included in the drafts in which she was involved.

The court made a distinction between “secondary” contributions, such as criticism or suggestions on characters and “primary” contributions which would include the actual writing of the script.

Clarity of voice

This decision should give confidence to script writers, authors and others who discuss their ideas with partners or friends and receive useful comments, suggestions or helpful criticism in return. However, where parties are looking to be joint authors in a work, or a party wants his or her contribution to be recognised as such, they should consider documenting their intentions and also set out the circumstances in which the jointly authored copyright work can be licenced and how royalties will be split.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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