Joint authorship does not require writing contribution

The ruling is important for businesses and individuals that collaborate on projects not only in the creative industry but in any walk of life, said intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.

The Court of Appeal was ruling over a dispute concerning ownership of copyright in the authorship of the screenplay of a film about the latter part of the life of Florence Foster Jenkins, a wealthy American socialite who considered herself a talented operatic singer.

Julia Kogan, a writer and opera singer, has challenged the sole authorship of the screenplay that has been claimed by her former partner Nicholas Martin and his company Big Hat Productions. Kogan claimed she jointly authored early drafts of the screenplay, while Martin, the main writer and scribe, claimed that he was the sole author and copyright owner. 

In an unusual move, the Court of Appeal ordered a retrial of the case before the High Court after finding that the High Court judge who had originally considered the case, and who had ruled in Martin's favour, had "adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material matters and applied incorrect legal standards to the assessment of the sufficiency of Ms Kogan's contributions".

While the Court of Appeal did not issue a binding ruling, it did state that it is "entirely realistic to suppose that a reconsideration of all the evidence would show that Ms Kogan's contribution was indeed made as part of a collaboration and passed the quantitative threshold for joint authorship".

In its judgment, the court set out guidance on the approach to be taken when determining whether a contribution to a creative project is sufficient to merit a finding of joint authorship.

In its 11-point guidance, the court confirmed that a work of joint authorship is "a work produced by the collaboration of all the people who created it" and that 'collaboration' will be said to have occurred "where those people undertake jointly to create the work with a common design as to its general outline, and where they share the labour of working it out". It said it is for the court to first "determine the nature of the co-operation between the putative joint authors which resulted in the creation of the work".

The court said that people that merely provide editorial corrections or critique works or otherwise provide "ad hoc suggestions of phrases or ideas" will not be eligible for joint authorship rights.

Joint authorship can be claimed by non-writing contributors, the court also confirmed. However, it said people must have contributed "a significant amount of the skill" into the creation of a work to be considered a joint author of it.

"The statutory concept of an author includes all those who created, selected or gathered together the detailed concepts or emotions which the words have fixed in writing," the Lord Justice Floyd said in his leading judgment for the court. "…What counts as an authorial contribution is acutely sensitive to the nature of the copyright work in question."

Contributions must meet the standard of "elements which expressed that person's own intellectual creation" for them to merit rights of joint authorship. The court highlighted a tension in evidencing contributions which "must not be distinct" and the fact that is no need for contributors to have "subjectively intended to create a work of joint authorship" in order to be considered as joint authors. The evidence in this case was found to be all the more difficult because Martin and Kogan began a relationship during the period when the work was created; against which context the evidence needed to be judged.

The Court of Appeal said that contributors who do not have the final say on what goes into the work can still be said to have participated in collaboration in some cases and have rights to joint authorship. It further confirmed that those rights can be split unequally.

"The respective shares of joint authors are not required to be equal, but can reflect, pro rata, the relative amounts of their contributions," it said.

Iain Connor said: "This is a very important case regarding the joint ownership of intellectual property for anyone collaborating on a project together, even if the judgment did not decide the issues between the parties. The court highlighted the fact that the indivisible nature of the contributions – necessary for a finding of joint authorship – can also make evidencing such contributions difficult, especially where one person ‘held the pen’. It means it is more important than ever to determine how the output of a project should be owned from the start."

"While ownership is important, arguably more important is how the spoils of the commercial exploitation should be shared. This can easily be recognised through, for example, the royalty provisions, rather than who actually owns the work," he said.