Authorship: opera singer loses legal fight over Florence Foster Jenkins script

A Judge has declared that screenwriter Nicholas Martin is the sole author of the Hollywood comedy drama Florence Foster Jenkins, which was directed by Stephen Frears and starred Meryl Streep and Hugh Grant. The Judge rejected claims by his ex-girlfriend Julia Kogan that she was its joint author and entitled to a share of the profits.

Mr Martin is a professional scriptwriter, and Ms Kogan, an opera singer, lived with him during the period in which the idea of a film based on Florence Foster Jenkins arose and when treatments and early drafts of the screenplay were written. The couple frequently discussed the project.

Mr Martin was the claimant in the litigation, seeking a declaration that he was the sole author, while Ms Kogan filed a counterclaim for a declaration that she was joint author of the screenplay and that Mr Martin had infringed the copyright in it. Ms Kogan also joined the production and financing companies for the film as Defendants, suing them for infringement of copyright.The Judge had to decide the nature and extent of Ms Kogan’s contribution to the writing of the screenplay, whether that made the screenplay a ‘work of joint authorship’ under the Copyright, Designs and Patents Act 1988, and whether anything Ms Kogan said or did gave the production and financing companies a defence to her claim.

He found that Ms Kogan’s contributions as sole writer of the text of the screenplay were limited to suggestions of technical musical language, with which she was undoubtedly more familiar than Mr Martin. These were incorporated into early drafts and some of them found their way into the final screenplay.

In an analysis which is relevant to how writing collaborations often work in practice, the Judge dealt with the question of who was the ‘ultimate arbiter’ of the content of the script, i.e. who had the final word as to what would go in and what would not. He decided that the fact that one contributor was the ultimate arbiter did not mean that there could not be joint authorship, and that, although this was a relevant factor, it was not decisive. He found that Mr Martin was the ultimate arbiter of what went into the screenplay drafts.

The Judge concluded that the textual and non-textual contributions made by Ms Kogan never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions. Taken together they were insufficient to qualify Ms Kogan as a joint author of the screenplay, regardless of whether those contributions had been made in the course of a collaboration to create the screenplay. Mr Martin was the sole author.

In a subsequent judgment, the Judge decided that, although the costs claimed against Ms Kogan as the unsuccessful party ran to almost £300,000, she was only liable for a little over £75,000 of the costs, because of the cost caps which apply in the Intellectual Property Enterprise Court, where the case was heard.

The judgment provides a very useful analysis of how the law of joint authorship applies to the creation of film scripts, which are often collaborative projects, which go through many different versions with input from numerous writers. It records that Mr Martin agreed during the process of finalising the script to give 15% of his writing income to a Hollywood-based couple who reviewed the project with him.

Ultimately given the size of the part of the costs bill which Mr Martin was unable to recover from Ms Kogan, the case underlines the value of making clear and enforceable agreements with collaborators early in the production process.