The Court of Appeal has considered the application of principles relating to joint authorship and ownership of copyright in the screenplay for a film.

Background

A "work of joint authorship" is a work that is produced by the collaboration of two or more authors, and in which the contribution of each author is not distinct from the other (section 10(1), Copyright, Designs and Patents Act 1988) (section 10(1)). If the contributions are distinct, two or more separate works will exist.

Facts

M produced a final draft of a film screenplay about the life of an opera singer. The film credits identified M as the sole author. K claimed that she was a co-writer who had worked closely with M on the drafts, contributing to the characters, the story and the dialogue so that it was a work of joint ownership within the meaning of section 10(1).

The IP Enterprise Court (IPEC) accepted M's submission that each draft of the screenplay should be treated as a separate copyright work. It held that there had been no collaboration in creating the final version, so that K was not a joint author. K's contribution had been limited to minor editing, helpful criticism and technical musical language in early drafts. The court ruled that the significance of a contribution depended on the type of skill employed, distinguishing between primary skill (selection and arrangement of words while setting them down) and secondary skill (inventing plot and character). The test of joint authorship based on primary skill was whether the contribution was a substantial part of the whole, but to succeed in a claim of joint authorship based on secondary skill, the contribution had to be sufficiently overwhelming to render the person who provided the primary skill nothing more than a scribe.

K appealed.

Decision

The court allowed the appeal, set aside the declaration and ordered a new trial.

Joint authorship involves collaboration, which means people jointly creating the work with a common design as to its general outline and sharing the labour of working it out. Derivative works do not qualify. It is not enough to ask "who did the writing?" when assessing collaboration to create a literary or artistic work. For example, one person might create the plot and another write the words. An author includes those who contributed significantly to creating, selecting or gathering together the detailed concepts or emotions that the words fixed in writing. Contributions that were not authorial do not count.

The question of what was enough of a contribution was to be judged by whether the putative joint author had contributed elements that expressed the person's own intellectual creation. This turned on whether the person had exercised free and expressive choices. The contribution of a putative joint author must not be distinct.

The authors need not have had a subjective intention to create a work of joint authorship. The fact that one of the authors had the final say was not conclusive. However, the author with final say must be given credit in deciding on the relative proportions of ownership, for the extra work in making those choices. Respective shares of joint authors could reflect pro rata the relative amounts of their contributions.

Where a copyright work was created by working on a series of drafts, there were two approaches to analysing the artistic or literary input:

• Treating each draft as a separate copyright work and assessing only the original skill and labour in the relevant draft.

• Treating the work holistically as a single work, which required the totality of the skill and labour involved in producing all the drafts to produce it.

Often it would not matter which approach was used. However, it was agreed at the case management conference that K could succeed in her action for copyright infringement if she proved her contributions to earlier drafts (the second approach). As K had been involved more in earlier than later drafts, it was unfair to K for the court to restrict the case to the final screenplay at trial. If M wished to argue for the first approach, he should have raised it earlier. If the case was to be analysed on a draft-by-draft basis, then while the earlier works might have been produced by collaboration, the final screenplay was not: it was a derivative work of which M was the only author.

The IPEC's distinction between primary and secondary skills and the implication that less weight should be given to ideas than written words was incorrect. The IPEC had also failed to make an important distinction between a novel and a screenplay; a screenplay was more accurately described as a dramatic work because it was meant to be performed, not read, and therefore its real value might lie in its plot to a greater extent than in a novel. In any event, it was wrong to describe inventing plot and character as a secondary skill and to say that there was a high bar for such contributions. K should not have been criticised for being unable to spell out her contributions, as it was inherent in a case of joint authorship that individual contributions would not be separate or distinct. The test was relatively undemanding: the contribution had to be of elements that were the expression of the author's own intellectual creation.

The principle that the appeal courts should be slow to interfere with factual findings applied with particular strength to the IPEC, which is a less complex and costly alternative to the High Court. However, here the IPEC had failed to make important findings of primary fact and had applied incorrect legal standards to the assessment of the sufficiency of K's contributions, making a retrial unavoidable.

Comment

This decision clarifies that in claims for joint authorship of literary, artistic or dramatic works, it is not only those doing the writing who will be able to show the necessary collaboration; for example, there may be joint authorship where one person devises the plot and the other writes the words.

The decision is a reminder of the importance of the plot to a dramatic work such as a screenplay and therefore in any assessment of contributions in the context of claims for joint authorship of copyright works.

Case: Kogan v Martin and others [2019] EWCA Civ 1645.

First published in the December issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.