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The Court of Appeal has set aside a judgment which found that the then-girlfriend of the writer of Hollywood comedy drama Florence Foster Jenkins was not its joint author and has ordered a new trial in the case.

The case involves a dispute between Julia Kogan, an opera singer, and screenwriter Nicholas Martin about the authorship of the screenplay, which became a successful film, directed by Stephen Frears, and starring Meryl Streep and Hugh Grant.

Kogan and Martin lived together when the idea of a film based on Florence Foster Jenkins – whose story both parties accepted had been introduced to Martin through Kogan – arose and early drafts of the screenplay were written.

The trial Judge concluded that Kogan’s contributions never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions, and were not sufficient to qualify her as a joint author.

In an unusual move, the Court of Appeal reviewed and enlarged the factual background to the dispute, drawing on the parties’ evidence at trial to fill out a more detailed picture of their roles in the creation of the screenplay.
The Court also gave a detailed procedural history of the case, which was litigated in IPEC, a court with a special jurisdiction for intellectual property cases.

It went on to give an illuminating account of the law concerning joint authorship, which is defined by s 10(1) of the Copyright, Designs and Patents Act 1988, and set out a clear 11 step framework for analysing the issue.

It considered the idea that joint authors must collaborate in the creation of a work and said that it is “logical to suppose that the skill which goes into devising the plot is properly to be regarded as part of creating the work”.

The Court went on to say that “A collaborative work may thus come into existence if, in the context of a particular joint project, one person decides on the plot and the other writes the words to give effect to the plot.”

“There will be a panoply of other ways of working as well, for example the labour of writing may be shared, or the labour of working out the plot, scenes and characters may be shared.”

It reinforced this analysis with observations on the extent to which authorship is related to “the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing” rather than simply “who pushed the pen” and that a “contribution” to a screenplay might relate to “storyline and plot”.

The Court held that the trial Judge had been wrong to find that the parties had not collaborated on the work involved in creating the final screenplay from the preceding drafts. It found that the Judge should not have refused to look at witness evidence, leaving the Court of Appeal without the benefit of essential findings of primary fact.

It also found that the trial Judge should have made a specific finding as to whether there was a collaboration, and his summary of Kogan’s contribution failed to take account of significant matters, including her contribution to the shaping of Florence Foster Jenkins’ character and the plot.

The Appeal was allowed and a new trial before a different judge was ordered.
This is an important judgment for those involved in creative collaborations and for copyright law generally and will likely be influential in how to approach collaborative work in legal terms.

In focusing on the fact that a sufficiently detailed idea may attract copyright protection it makes clear that contributing elements of a work such as plot might give rise to an intellectual property right.

Reaching agreement on these legal issues at an early stage in the process will now be more important than ever.