Joint Copyright - The Retrial in Martin and Another v Kogan

Meryl Streep who acted the lead role in Florence Foster Jenkins


Intellectual Property Enterprise Court (Mr Justice Meade) Martin and another v Kogan [2021] EWHC 24 (Ch) (11 Jan 2021)

This was the retrial of an action by the screenwriter, Nick Martin, for a declaration that he was the sole author of the screenplay for the film Florence Foster Jenkins and a counterclaim by Julia Kagan for a declaration against Mr Martin and the companies that had funded and made the film that she was a joint author and thus a joint owner of the copyright in the screenplay and relief for infringement of her copyright and moral rights.  The action and counterclaim had previously come on before Judge Hacon who found for Mr Martin in Martin and Another v Kogan [2017] EWHC 2927 (IPEC) (22 Nov 2017).  Ms Kogan appealed to the Court of Appeal which ordered a new trial before a different judge (see Martin and another v Kogan [2019] EWCA Civ 1645). The new trial came on before Mr Justce Meade on 12, 14 and 16 Nov 2020 and he delivered judgment on 11 Jan 2021.  At paragraph [417] of his judgment in Martin and another v Kogan [2021] EWHC 24 (Ch) (11 Jan 2021), his lordship held that Ms Kogan was a joint author of the screenplay, her contribution was 20%, she had consented to dealings with the screenplay but had subsequently withdrawn her consent, her copyright in the screenplay had been infringed from the withdrawal of her consent but she was estopped from seeking relief from the film companies.

The Facts 
I set out the basic facts in my case notes on the original trial and appeal, namely What constitutes Joint Copyright? Martin v Kogan on 29 Dec 2017 and Joint Copyright - The Appeal in Martin and Another v Kogan on 16 Oct 2019.  It is also helpful to read Mr Justice Meade's "Dramatis Personae"Outline of the Plot and Main Characters in the Film", "Agreed/Undisputed Facts" and his "Chronology".

The issues
A directions hearing took place before Mr Justice Birss who ordered the following issues to be tried:

"1. Was the Screenplay created by a collaboration between the First Claimant and the Defendant of the sort set out in paragraph 53.2 of the Court of Appeal's judgment?
2. What was the nature of any such collaboration?
3. What was the nature of the Defendant's contribution to such collaboration?
4. Was the Defendant's contribution an 'authorial' contribution?
5. Was the Defendant's contribution an expression of her own intellectual creation?
6. Was the Defendant's contribution distinct from the Screenplay as a whole?
7. If the answers to 1, 4, 5 and 6 are yes, what were the relative amounts of Mr Martin's and Ms Kogan's respective contributions?
8. If the Court finds that the Defendant is a joint author of the copyright in the Screenplay, have the Claimants and the Part 20 Defendants infringed the Defendant's copyright in the Screenplay?
9. Do the matters set out in paragraphs 7c and d of the Part 20 Defendants' Defence provide a defence to any alleged wrongful acts other than public performance?"

Legal Principles
Mr Justice Meade quoted paragraph [53] of Lord Justice Floyd's judgment on the appeal which I also quoted in my case note.  He also noted the following paragraphs from that judgment:

"65. The judge's distinction between primary and secondary skills in assessing contribution has no basis either in the statute or in decided cases. To draw such a distinction tends to imply that less weight is to be given to ideas than to written words, when both are essential components of the work. In our view, the distinction is positively unhelpful. Depending on the facts, the person who contributed the ideas may be the "major" author: see per Laddie J in Cala Homes (cited above) at 836.
66. We think that a number of other specific errors are revealed in this passage. At [45] and [46] the judge describes a screenplay as a literary work, like a novel, and describes the primary skill as the selection and arrangement of words in the course of setting them down. This passage fails to make what in our view is an important distinction between a novel and a screenplay. We think a screenplay is more accurately described as a dramatic work, as its primary purpose lies in being performed, as opposed to being read, like a novel. The importance of the distinction is put in this way by the authors of Copinger and Skone James on Copyright, 17th Edition at para 7.93:
'… a basic distinction between literary works and dramatic works is that the choice of dramatic incident and the arrangement of situation and plot may constitute, to a much greater extent, the real value of a dramatic work. … It should be remembered that dramatic works include not only plays and screenplays …".
67. Irrespective of this distinction, it is wrong to describe inventing plot and character as a secondary skill: see in this connection, the critique of this part of the judge's reasoning in Simone (cited above), at page 39. The arrangement of situation and plot, as well as character development, can be of the essence of a literary or dramatic work. We accept that the judge then went on to disclaim reliance on 'a distinction in law between primary and secondary skills in relation to their intrinsic capacity to give rise to joint authorship', but he nevertheless gave (at [50]) a fairly extreme example of where joint authorship 'could not be ruled out': namely where a co-author contributed the whole of the plot and all the characters.'"

Issues 1 and 2  was there a collaboration and what was its nature?
The learned judge found at [313] that Ms Kogan had the original idea of a screenplay about Florence Foster Jenkins and that she and Mr Martin set about the creation of such a screenplay, initially by mapping out the characters, feeling, main events and key musical content in the period up to April 2012, and in particular resulting in the first 5 draft treatments.  They never had a formal planning meeting to allocate tasks but they understood that Mr Martin would "hold the pen" and have the final say.  The judge described their discussions as "close and iterative and so went far beyond a mere 'sounding board' relationship."  They knew and recognized that they were on the path towards a screenplay. His lordship added that this amounted to a "common design as to general outline and a sharing of labour" though he doubted that they would have agreed an intention to create a work of joint authorship as such.  Ms Kogan contributed to the final drafting of the screenplay though to a lesser extent and also contributed some input during filming.

Issue 3 – what was the nature of Ms Kogan's contribution?
The judge found that the idea of a film about Florence Foster Jenkins was almost the only thing that she had contributed alone. She also contributed a few words of dialogue in the nature of technical musical terms. Her main contribution was in relation to music. He explained at [317]:

"Ms Kogan had a feeling for the musicality of the screenplay and its interaction with the characters and their development. She had an understanding of musical tuition and the feel of the world of opera and 1940s New York. She made plot and character suggestions based on this. She made some suggestions for dialogue which were worked up with Mr Martin into important scenes."

Issue 4 – was Ms Kogan's contribution authorial?
Mr Martin had conceded that Ms Kogan's contribution had been authorial.  His lordship made clear that the idea of making a screenplay about Florence Foster Jenkins's life would not have been authorial on its own but Ms Kogan's contribution as a whole was authorial in that it resided in the "creation, selection and gathering together of detailed concepts and emotions which the words have fixed in writing" as noted by the Court of Appeal at paragraph [45] of Lord Justice Floyd's judgment.

Issue 5 – was Ms Kogan's contribution an expression of her own intellectual creation?
The judge held that her contribution had been such. He said at [322]:

"Her contributions were far from mechanical or constrained and were highly creative and imaginative. The fact that Mr Martin had the final decision does not mean that her contribution was not an expression of Ms Kogan's own intellectual creation."

Issue 6 – was Ms Kogan's contribution distinct?
The learned judge held that it was:

The characterisation and musicality run right through the whole film. In relation to the dialogue in various scenes, it was impossible to say who had contributed what apart from the odd technical word that came from Ms Kogan. 

Issue 7 – relative amounts of the contributions
At paragraph [53] of his judgment, Lord Justice Floyd has said:

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

After considering Judge Birss QC's judgment in Slater v. Wimmer [2012] EWPCC 7 and Mr Justice Blackburne's in Fisher v. Brooker [2007] FSR 12, Mr Justice Meade directed himself as follows at [330]:

"i) There is a presumption in favour of equal shares as between joint authors.
ii) Joint authors may provide otherwise by agreement (not relevant here).
iii) There may be circumstances where the Court is not able to reach any different conclusion than equal shares.
iv) But if circumstances justify a different result than equal shares the Court may so decide, assigning shares pro rata to their individual contributions.
v) The decision is a highly subjective one and may be approached on a broad-brush basis (as Blackburne J did).

His lordship held that as Mr Martin had done much of the work it would have been unjust to allow Ms Kogan a half share. He decided to divide the collaboration into two periods:

"i) The period of the initial development of the treatments, up to the Final Treatment in February 2013.
ii) The period from then on, which includes most importantly the period when Mr Martin actually wrote the screenplay on Final Draft. "

He found at [352] that the effort and work, taking into account both the qualitative and quantitative, that went into this second period was considerably greater than the first, and was undertaken much more by Mr Martin than by Ms Kogan.  The time that Ms Kogan could contribute was limited as she had to recover from a motor accident and she also had her own teaching commitments.   Taking everything into consideration, the judge assessed her contribution ar 20%.  By way of a cross-check, he said at [355]

"i) The first period represented about one third of the overall creation, with Ms Kogan contributing about one third of it, perhaps slightly more.
ii) The second period represented about two thirds of the overall creation, with Ms Kogan's contributing only about one tenth.
iii) This adds up to a little under 20% contributed by Ms Kogan, but as I say I think the one third contribution from Ms Kogan in respect of the period may be on the low side."

Issues 8 and 9   
At paragraph [383] the judge said that he had to consider:
  • whether the necessary ingredients for a defence of estoppel or acquiescence had been made out and their effect on the relief he might give; and
  • whether he should grant declarations about legal rights.
The easier of those issues was the second.   Having found that she was the joint owner of the copyright in the screenplay, the judge granted Ms Kogan a declaration to that effect.  He found that she had consented to the making of the film but had withdrawn her consent on 16 March 2015.  After that date, Mr Martin had infringed her copyright.   

As to the first issue, the judge considered the following matters:

"i) I consider it highly relevant that Ms Kogan knew about the Film Companies' belief as to their ability to commercialise the screenplay, and in a loose sense at least had fostered that belief by encouraging Mr Martin to try to get the screenplay commercialised in his own name alone.
ii) It is also highly relevant that if Ms Kogan had stated the true position before the Film Companies became committed then the Film Companies would have been able to go ahead with the Film at no greater expense than what they paid Mr Martin, as they had agreed an arm's length overall price with him, and could and would have successfully insisted that Ms Kogan and Mr Martin should share it.
iii) Alternatively, but much less likely, the Film Companies would have walked away with no exposure to Ms Kogan's claim.
iv) On the other hand, the Film Companies have accrued substantial benefit from the exploitation of the Film, including Ms Kogan's contribution.
v) The fact that the Film was released without a credit to Ms Kogan was her own fault by allowing a position to arise where her claim was late, unclear and confusing and apparently inconsistent with Mr Martin's sole authorship, which she had allowed the Film Companies to believe in.
vi) To the extent that the Film Companies have the benefit of estoppel to prevent Ms Kogan obtaining financial relief from them for the past, it is relevant that she had, or might have had, an alternative remedy against Mr Martin.
vii) For such future payments as may be due to Mr Martin hereafter, the position is different because it would not worsen the position of the Film Companies to have to arrange payment to Ms Kogan of her share (and to pay Mr Martin correspondingly less), other than by creating what I am sure is a very modest administrative burden. This is probably only hypothetical given the information above about what the Film Companies are likely to pay Mr Martin in future and I will hear argument about it at the form of Order hearing.
viii) I can see no real downside to the Film Companies giving an appropriate credit on IMDb and they do not argue that there is one."

The judge concluded that Ms Kogan was estopped from seeking an injunction against the film companies or any restriction on the form in which they might distribute the film, or any financial relief against them, so long as the companied paid to her 20% of anything owing by them to Mr Martin in the future. He found that she was also estopped from withdrawing her consent to their commercialization of the film.  The judge explained that his intention was to put the film companies in essentially the position in which they genuinely and reasonably thought they were, and on the faith of which they had acted.

The film companies had  submitted to the judge that if he were to find in favour of Ms Kogan then he would be creating a new situation in which parties in creative industries, such as the film companies, would be unable safely to invest in screenplays or the like purportedly written by one individual, for fear of finding out later that they were actually works of joint authorship.  His lordship rejected that contention because he did not believe that he was creating any new principle in relation to joint authorship.  Parties in the position of the film companies are and always have been in the position that it might turn out that the purported author is not the only author, or has wrongly copied from someone else.  The risk is managed by dealing with authors with a good reputation, by making appropriate inquiries, by taking appropriate warranties and indemnities, and by acting responsibly if a problem arises.

The judge indicated that he would hear further argument on the form of the order, applications for permission to appeal and other matters at a later date.

The complexity of the judge's decision on the last two issues seems to have resulted from a lack of clarity and consistency as to the remedies that Ms. Kogan sought.   He explained at [359]:

"[359]  Ms Kogan's position as to the relief she seeks changed several times before me, and this has made my task unnecessarily more difficult. For example, despite the Court of Appeal recording at [143] that no injunction was sought and that the only credit sought was on IMDb, Ms Kogan reinstated and then dropped a claim for a credit on all physical copies of the Film, and she made and then dropped an assertion that there might be an order for her to have a portion of all the profits of the Film Companies from the Film.
[360] In addition, the opening written skeleton on her behalf contained no detailed argument but said that the comments of the Defendants to the Counterclaim were awaited. Further rounds of submissions were necessary as a result."

Anyone wishing to discuss this article, the case or joint authorship generally may call me on 020 7404 5252 during office hours or send me a message through my contact form.


Unknown said…
Issue 6 - the judge actually found the contributions of Martin and Kogan were NOT distinct - this is essential for a finding of joint authorship (s.10.1 Copyright Designs and Patents Act 1988). Where the contributions of the authors are distinct creates co-authorship in the work.

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