Copyright: joint authorship of film screenplay

Background

A work of joint authorship is a work that is 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 (section 10(1), Copyright, Designs and Patents Act 1988).

Facts 

K was an opera singer and M a professional writer. M produced a final draft of a film screenplay about the life of an opera singer after K and M's romantic relationship ended. The film credits identified M as the sole author. 

The IPEC granted a declaration to M that he was the sole author of the screenplay. K appealed.

The Court of Appeal allowed the appeal and ordered a retrial in the IPEC (www.practicallaw.com/w-022-9583). It also set out guidelines for assessing relative contribution on joint authorship: 

• There was a presumption in favour of equal shares between joint authors, although joint authors may provide otherwise by agreement.
• There may be circumstances where the court is unable to reach any different conclusion than equal shares, but if circumstances justifies a different result than equal shares, the court may so decide, assigning shares pro rata to their individual contributions.
• The decision is a highly subjective one and may be approached on a broad-brush basis.

Decision

The IPEC held that K was a joint author of the screenplay. 

Following the Court of Appeal’s guidelines, the court had first to decide whether there was a collaboration and its nature. K had the original idea of a screenplay. K and M then worked on the creation of a screenplay, initially by mapping out the characters, feeling, main events and key musical content. M “held the pen” t and had the final say; however, by their conduct, in discussions that went beyond a mere sounding board relationship, they maintained a pattern of behaviour in contributing possibilities for the content. This amounted to a common design as to general outline and a sharing of labour. When M wrote the screenplay on his computer, and during early film production, K's contribution was similar but more limited. 

K had the initial idea for the project, but it was the only element that she contributed alone. She also had a feeling for the musicality of the screenplay and its interaction with the characters and their development. She made plot and character suggestions, and some suggestions for dialogue that were worked up with M into important scenes. K’s contribution was authorial because it was based on the creation, selection and gathering together of detailed concepts and emotions which the words have fixed in writing. However, the mere idea to make a screenplay would not be authorial on its own.

It followed that K's expression was of her own intellectual creation. Her contributions were not mechanical or constrained and were highly creative and imaginative. The fact that M had the final decision did not mean that K’s contribution was not an expression of her own intellectual creation.

The characterisation and musicality ran through the whole film. In relation to certain dialogue, it was impossible to say which of the couple contributed what. Trying to separate them would be like trying to unmix different colours of paint.

Applying the Court of Appeal’s principles to the facts, in order to assess the relative contributions of the joint authors, it was useful to divide the history of the development of the screenplay into two periods: the initial development and the period afterwards, which included most importantly the period when M actually wrote the screenplay on his computer. For the first period, K's input was highly significant but well under half. For the second period, K continued to make similar contributions, but to a much lower degree. The overall amount of time spent by K and M was also a factor, but not a conclusive one.

The court assessed K's contribution to the collaboration as 20%.

The film companies' defence of estoppel in respect of relief for infringement of K’s copyright in the screenplay turned on whether it would be unconscionable for K to assert her rights against them. K knew about and had fostered the film companies' belief about their ability to commercialise the screenplay by encouraging M to try to get the screenplay commercialised in his own name alone. K accepted that she was estopped from seeking an injunction against the film companies. She was also estopped from seeking any restriction on the form in which they distributed the film, or any financial relief against them, provided they paid to her 20% of anything owing by them to M for the future. She was estopped from withdrawing her consent to their commercialisation of the film. However, the companies should give her the appropriate credit for joint authorship of the screenplay. 

K had consented to dealings with the screenplay originally, but later, after commercialisation of the screenplay had begun, withdrew her consent. M infringed K's copyright in the screenplay after K withdrew her consent. K was entitled to an inquiry as to damages or an account of profits against M for the period after she withdrew her consent. 

The court also set out the principles for dealing with situations where part of a witness’s evidence was disbelieved. A witness might lie on one issue, but it does not necessarily mean that the whole of their evidence should be rejected, depending on all the circumstances. 

Comment

This decision illustrates the application of the principles on assessing joint authorship, and on determining the relative contributions of joint authors in a collaboration in the context of copyright in a screenplay. The principles are however equally applicable in other settings, such as collaborative software development. The decision also demonstrates the importance of contractually agreeing in advance ownership of copyright as well as the terms of exploitation of the copyright work in cases of joint ownership. It is also relevant to the relief which a copyright owner may be entitled to if they knowingly permit the copyright to be exploited, but later withdraw their consent.

Case: Martin and another v Kogan and others [2021] EWHC 24 (Ch).