Court of Appeal
The Court of Appeal orders a retrial on a case surrounding disputed joint authorship and highlights serious errors in the original judgement.
Mr Martin, a writer, wrote the screenplay for the successful film entitled Florence Foster Jenkins (FFJ) and Ms Kogan, an opera singer, claims she is a joint author in the work as she assisted in developing plot, characters, lines and provided technical musical language. Mr Martin and Ms Kogan were living together and were in a romantic relationship when he began writing the screenplay for FFJ.
As the case was heard at the IPEC, the parties had to request permission at the CMC to file witness statements. The judge allowed this, and each party provided lengthy and detailed witness statements about the other’s involvement in the writing process.
The judge at the CMC identified the following issues in a Schedule to his order as:
1. Whether Ms Kogan is a joint author of the final version of the screenplay.
2. Whether Ms Kogan is estopped or prevented by acquiescence, agreement or waiver from
asserting or relying on any rights of sole or joint authorship.
There were multiple drafts of the screenplay and Ms Kogan conceded that she contributed only to the first three. In the first instance, HHJ Hacon decided that all drafts and the final screenplay could be viewed collectively as a single copyrighted work. This meant that Ms Kogan could be a joint author in the final screenplay without being directly involved in drafting it, if she could prove that her contributions to the first three drafts had been utilised in the final screenplay.
In his witness statement, Mr Martin states that Ms Kogan provided encouragement, criticism, editing and information on the New York music scene at the time and that her observations and opinions on Florence’s personality had influenced the way he wrote the character. However, he asserted that ‘At no time did Julia suggest scenes, characters or sequences nor did she contribute in any way to the construction of the films structure’(24). Ms Kogan, however, claims that she and Mr Martin would often write together and constantly bounce ideas off each other. She provided a scene by scene break down of the film which detailed where she had contributed and conceded where she had not.
Judgement of HHJ Hacon
The judge recognised the following issues:
(1) What was the nature and extent of Ms Kogan's contribution to the writing of the screenplay?
(2) Did that contribution make the screenplay a 'work of joint authorship' within the meaning of s.10(1) of the Copyright, Designs and Patents Act 1988 ("the Act") and qualify Ms Kogan to be joint author with Mr Martin?
(3) Did any act or statement by Ms Kogan, or lack of the same, provide the Part 20 Defendants with a defence of acquiescence or estoppel?
He dismissed Ms Kogan’s scene by scene analysis and calling it ‘vague and rambling’; he felt it failed to identify her specific contributions. HHJ Hacon then evaluated the issue of collaboration, employing the two ‘short cuts’ which had been offered by the claimant. The first ‘short cut’ was that Ms Kogan had acknowledged her limited input after the third draft. Contrary to his earlier assertion that ‘contributions to earlier drafts must be taken into account’ when considering joint authorship in the final draft, the judge held that each draft was a separate copyrighted work and, as there was no collaboration on the final draft, there was no joint authorship. The second ‘short cut’ relies on the fact that Mr Martin had the final say. The judge denied that this alone excludes joint authorship although it was a ‘relevant factor’.
HHJ Hacon then introduced his own theory; the skills employed by collaborative authors may be categorised into ‘primary’ and ‘secondary’ skills. An example of a primary skill in writing would be the arrangement of words on the page; a secondary skill the development of plot and character in a novel or screenplay. Although he emphasised that secondary skills are by no means less important, he states that it is a challenge to prove joint authorship arising from a ‘secondary skill’ as there is less supporting evidence.
The judge spent a lot of time reviewing the reliability of witness evidence referring to Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd 2013 and Blue v Ashley 2017. He decided Leggatt J’s observations indicated the best approach is to ‘place little if any reliance at all on witnesses’ recollections….and instead base factual findings on inferences drawn from documentary evidence’. He considered only documented evidence provided by the parties in the form of emails and other written evidence, completely disregarding witness accounts of conversations and other events. Emails from Ms Kogan stating that ‘this is totally your baby’ and ‘you must protect your position as the writer’ were used as evidence along with the fact that she had failed to raise an issue despite her knowledge that Mr Martin had registered draft one-three with the Writers Guild of America listing himself as the sole author.
The judge found that the documentary evidence indicated that Mr Martin was the sole author. He also concluded that Ms Kogan’s non-textual input had been ‘probably’ limited to a few minor character and music choices and suggesting the context for one scene. Overall, Hacon HHJ held that Ms Kogan’s contributions ‘never rose above the level of providing useful jargon’ and that ‘Mr Martin was the sole author’.
The film companies had raised an acquiescence/estoppel defence and Ms Kogan had argued that this defence was precluded by EU law and not available to them. As the argument had not been pleaded, the judge refused to consider it. He found that, had Ms Kogan’s contribution amounted to joint authorship, it is likely that the defence would have succeeded as it would have been unconscionable for Ms Kogan to restrict public performance of the film. He was reluctant to ruminate further as it would ‘require hypothetical facts’.
Court of Appeal
The law on joint authorship
Before addressing the grounds for appeal, the court reviewed section 10(1) of the Copyright, Designs and Patents Act 1988 (CDPA) which states:
‘In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the author or authors’
And from this they highlight the four elements of joint authorship as:
Non-distinctness of contribution.
The court established that there must be collaboration pursuant to common design for joint authorship to exist and a friend making a suggestion is not common design; the parties must work creatively together. They also discussed the relationship between an idea and its expression and how that relationship can affect joint authorship. Jacob J’s suggestion in Ibcos Computers Limited v Barclays Finance Limited 1994 at 291 that, although a general idea may not be infringed, a detailed idea could (34). The court also gives the example of Brighton v Jones, 2005 where Park J says at 56 (ii) ‘Copyright can subsist in the story, or the plot, so that if what happened in rehearsals was that Miss Brighton determined what the plot of the play was to be and then Miss Jones actually wrote the words to give effect to the plot, I can see that Miss Brighton might have been a joint author.’ (35)
The court examined section 9(1) CDPA, which describes an author as someone who ‘creates’ the work, and section 10 (3), which says ‘references…to the author of a work shall…be construed in relation to a work of joint authorship as references to all authors of the work’. They concluded that these sections suggest that, when authors collaborate to create, they are joint authors. It is never enough to ask who wrote the story down.
The court emphasised the importance distinction between making a work and its fixation. The work itself may exist before it is fixed; copyright simply does not exist until it has been recorded (3(2) CDPA). Thus, the person who writes the words is not necessarily the sole author. The court cited the case Cala Homes (South) Limited v Alfred McAlpine Homes east Limited 1995 where an architect drew according to explicit instructions given by a director. Laddie J held at page 835 that the director was a joint author in the work as there was skill in imagining the image and lines and in drawing and arranging them on the page and both are protected by copyright. He also reaffirmed that an author must have contributed a ‘significant amount of the skill and labour’ to be considered a joint author (38). In contrast, the court disliked the interpretation of this by Lightman J in Robin Ray v Classic FM plc 1998 where he asserted that the architect in Cala Homes was acting as a scribe.
The court noted that the contribution must be ‘authorial’ in nature, meaning that the contributor is involved with matters which directly concern the author and become part of the work created. They affirmed the test from Case C-5/08 Infopaq International A/S v Danske Dagblades Forening 2009, which suggests asking ‘whether there were elements which expressed the author’s own intellectual creation’. Intellectual creation is defined in C-145/10 Painer v Standard Verlags GmbH 2012 as when an author contributes by ‘making free and creative choices’. They give the example of a creative choice as a portrait photographer adding a ‘personal touch’ to a photo by choosing framing, angle view and atmosphere created.
(d) Not Distinct
The court briefly considered ‘distinctness’ but this was not a contentious point in the case. They said that if each author’s contribution is distinct then joint authorship is not necessary.
The court went on to discuss whether joint authorship can arise when one author has final say over what is included in the work (the ultimate arbiter test). They concluded that the decision of Hazel Williamson QC in Bamgboye v Reed 2002 was the correct approach. She said that one author having the final say does not prevent joint authorship existing but should be considered when deciding whether there has been a true collaboration and what share of the copyright each author is entitled to.
Grounds for Appeal
Ms Kogan appealed on seven grounds. The Court of Appeal considered the grounds out of order but began with ground 1.
Ground 1 [78-85]
1.The judge’s decision based on the first ‘short cut’ was wrong, arguing that changes made to a work after collaboration has ended does not exclude a joint authorship claim.
Ms Kogan first submitted that a work could be of joint authorship if it has been produced by a collaboration placing emphasis on the word produced; the final screenplay was produced from the previous collaborations without Ms Kogan having collaborated on the specific draft. Second, that allowing the ‘short cut’ was unfair as the strict procedural IPEC rules had been strictly adhered to and the first ‘short cut’ argument was not in Mr Martin’s skeleton argument for trial.
The court held that a copyright work created as a result of multiple drafts may be considered either draft by draft or collectively as one copyright work but that it will not often matter as authors will work together on the entire project. It did matter in this case, however, as Ms Kogan only worked on the first few drafts. Considered on a draft-by-draft- basis, Ms Kogan’s claim failed because the screenplay itself was not worked on as a collaboration but by Mr Martin as sole author.
The Court of Appeal held that it was unfair of the judge to have allowed this unpleaded ‘short cut’ argument to defeat Ms Kogan’s claim and it should have been disallowed, as Ms Kogan’s defence to the companies’ estoppel/acquiescence claim was.
Ground 6 [86-105]
6. The judgement was flawed as the judge failed to consider the largely undisputed evidence detailing Ms Kogan’s scene by scene contribution.
The court did not agree with the reliance the judge placed on Gestmin, which says ‘the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence’. They found that the judge had ignored evidence without sufficient reasoning.
Furthermore, the contradicting evidence to describe the same scenario ‘was a fundamental issue that required to be resolved’(89) (for example, Ms Kogan stated the pair were bouncing ideas off each other and Mr Martin’s view that Ms Kogan was a sounding board for his ideas).
They found the approach taken by the judge to use only documentary evidence was not applied to documents that supported Ms Kogan’s case. This evidence included emails where Mr Martin had stated that she was intimately involved in character development and documents which provided context for a lot of Mr Martin’s supporting evidence.
The court held that the judge should have taken the relationship of the parties into account. As they were in a romantic relationship, Ms Kogan may not have needed public acknowledgement, despite her significant contribution, as she was romantically involved with the claimant and wanted him to receive the plaudits. Overall, the court felt that Ms Kogan’s evidence and statements had essentially been ignored without adequate reason and that if the judge’s findings are correct then all of the evidence given by Ms Kogan would be false.
Ground 2 [106-108]
2.The judge failed to consider EU law in whether input concerned expressive and creative choices.
The court considered the submission that the judge’s threshold for finding whether a contribution had been enough to warrant joint authorship was too high, but they felt this ground should be considered along with grounds 3-5 below.
Grounds 3-5 [109-138]
3./4. The judge ignored the extent of Ms Kogan’s contribution to certain scenes as well as key documents and passages of cross-examination and
5. The decision regarding Ms Kogan’s non-textual contribution was flawed.
The court found that the judge made his decision based solely on the second ‘shortcut’ provided by the claimant’s representative and had failed to make a specific finding as to whether there had been a collaboration between the two parties. They detailed the specific shortcomings in the judge’s decision.
The judge conceded that Ms Kogan had provided some technical musical language and jargon. The court found that, had there been a collaboration, the judge could have rejected the contribution on the basis that it was quantitively insufficient. They held it was wrong for him to have rejected on the basis that the contribution was not authorial. The claimant submitted that the technical language provided by Ms Kogan was equal to that which a researcher might provide. The court agreed this might be the case if it had been provided in the context of a researcher/writer relationship not as part of a ‘joint creative process’. The creative relationship between the parties, therefore, must be established. Ms Kogan had suggested using certain characters and songs with specific reasons behind the choices and argued that this contribution to the development of plot and character was important. The claimant argued that there was no free and creative choice in this contribution. The court found, that as the judge had failed to consider whether there had been a collaboration, there is difficulty in reaching a final decision on this matter.
Similarly, the judge failed to acknowledge Mr Martin’s admission that Ms Kogan’s observations about Florence’s character influenced the character’s development along with her other contributions to scenes and plot. The court held that these contributions should be considered with the others, if indeed there was found to be a collaboration. The court held that the judge should have explained why he took the view that, as Mr Martin was the ‘ultimate arbiter’, Ms Kogan’s plot contributions were less significant than they might otherwise have been. They suggested that the ultimate arbiter test be used either as an evidential factor to decide whether a collaboration took place or to decide relative shares in the copyright of the work.
The court described the unsupported distinction between ‘primary’ and ‘secondary’ skills as ‘positively unhelpful’ and found that the threshold he used to judge the contribution of ‘secondary skills’ was too high. They also criticised Hacon HHJ’s lack of distinction between a novel and screenplay in his example at  A screenplay relies heavily on the plot to evoke a reaction from an audience more than a novel and thus invention of plot and character carries more weight and cannot be defined as a ‘secondary’ skill. They also said the example of one author creating the whole plot and another writing all the words was extreme as authors often share roles when writing collaboratively.
The Court of Appeal also took issue with two additional points made by HHJ Hacon . He states at point four of  that there should be ‘no distinction on the kind of skill involved’. The court agrees in principle but emphasises their disagreement with the idea that ‘secondary skills’ having a high threshold.
They also warned against his assertion at point six of  which says that there may be a claim for joint authorship if copying the contribution alone would amount to copyright infringement of the whole work. This is misleading because the nature of joint authorship is that the contributions could not be individually copied as they are not distinct.
Ground 7 [143-144]
7. The judge’s decision regarding the companies’ defence of acquiescence/ estoppel was flawed.
The court found that this ground of appeal poses many arguments involving potential defences in England and Wales considering Directive 2001/84/EC. The court held that this appeal would be purely academic, as Ms Kogan no longer seeks any relief, they ‘are better resolved in a case in which they matter’.
Consequences and conclusion
The court conceded the claimant’s assertion that appellate courts should refrain from becoming involved in detailed and complex findings made by a judge but insisted this judgement could not be upheld.
They ordered a retrial as the judge ‘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 sufficiency of Ms Kogan’s contributions’(145).
They ordered that the trial be held before a different judge in the IPEC and made the following suggestions as to how to approach the case:
i) There should be no new pleadings or evidence;
ii) Ms Kogan should be able to rely on all her contributions accepting that her contributions after the third draft were limited;
iii) The new list of issues should include determining whether there has been a collaboration and the nature of that collaboration;
iv) The new trial should be on the basis that the film companies’ acquiescence/estoppel claim succeeded in terms of public performance of the film. The film companies may still argue that this claim should prevent other relief that might be available to Ms Kogan – although the court does not comment on the likely success of this argument;
v) Ms Kogan should not be able to argue her unpleaded legal answer to the above defence.
The decision examines the skills to be taken into account when considering a literary or dramatic work. Additionally, it serves as a reminder that judicial findings of fact must be based upon all the evidence, both documented facts and witness accounts. The judgment is an important development for minor joint authors, whose contributions may have been unfairly ignored previously and confirms that the test for joint authorship should not be stricter than for sole authorship. The fact that a well-known author has contributed more should not automatically reduce the significance of a joint author’s contribution. It will be interesting to see how the courts determine these relationships going forward, especially in digital context.