The IMDb Credits - Martin v Kogan

Florence Foster Jenkins by G B Bain

Jane Lambert

Intellectual Property Enterprise Court (Mr Justice Meade) Martin and another v Kogan [2021] EWHC 1242 (IPEC) (19 May 2021)

Florence Foster Jenkins seems to have been a rather good film about a less than good opera singer. The idea for the film seems to have been Julia Kogan's.  After a trial before Judge Hacon (Martin and Another v Kogan [2017] EWHC 2927 (IPEC) (22 Nov 2017)) an appeal to the Court of Appeal (Martin and another v Kogan [2019] EWCA Civ 164) and a retrial before Mr Justice Meade, the learned judge found that Ms Kogan was a joint author of the screenplay and that her contribution was 20% (see Martin and another v Kogan [2021] EWHC 24 (Ch) (11 Jan 2021)).  I discussed that litigation in What constitutes Joint Copyright? Martin v Kogan 29 Dec 2017, Joint Copyright - The Appeal in Martin and Another v Kogan 16 Oct 2019 and Joint Copyright - The Retrial in Martin and Another v Kogan 19 Jan 2021.

The Internet Movie Database (IMBd) is an online database of information on films, television programmes, video games, and other content that is available to the public. According to Wikipedia, the database had approximately 7.5 million titles (including episodes) and 10.4 million personalities in its database as well as 83 million registered users in December 2020. The database records the credits as they appear on the screen but occasionally an "(originally uncredited)" will be given where there is later evidence that someone else had input.

The database had originally listed Nicholas Martin as the sole author of the screenplay for Florence Foster Jenkins.  At the end of the trial, Mr Justice Meade ordered companies that had made the film to arrange a credit on IMDb to reflect Ms Kogan's work.  Following the judgment, the database recorded the following entry:

"Writing Credits

  Nicholas Martin   ...  (written by)

   Julia Kogan   ...    (written by) (originally uncredited)"

Mt Martin objected to that record on the ground that Ms Kogan's quantitative contribution, at 20%, was too little to get a "Screenplay by" or "Written by" credit at all. The judge rejected that contention saying that "the time to take any such point was at trial", and that had passed.  He also rejected Mr Martin's argument that Mr Martin should get a "Screenplay by" and a "Story by" credit and Ms Kogan only "a Story" by credit because it would imply a significant qualitative difference in input which his judgment did not warrant. It would imply that Ms Kogan did not contribute to the screenplay when she clearly did. Her input went well beyond just the story.

After considering all the parties' contentions, the judge decided in Martin and another v Kogan [2021] EWHC 1242 (IPEC) (19 May 2021) that the current entries in the database ought not to be changed.  He said at para [17]:

"These factors pull in different directions, but in my view, the current credit is the best option. It reflects what credits the film itself showed, which is the IMDb approach, and the later change ("originally uncredited") for my judgment. It puts Mr Martin first, which is appropriate given his much greater input. It is not in direct contravention of any strong principle in any of the guidelines. It suffers from two potential problems, each of which I think, however, is of no or low significance:

i) Ms Kogan's quantitative contribution was small. I have rejected this point as too late to prevent her getting a credit, her contribution was real not trivial, and in any event her being put second implies she was a more minor, sub-50% contributor.
ii) Ms Kogan did not write many words of the screenplay, so she should, the Claimants say, not get a Screenplay by credit on a narrow reading of the WGGB Guidelines and therefore cannot get a Written by credit. However, the WGA Guidelines clearly go broader than just words. This is the Claimants' better point but I think it is outweighed by other factors."

The abbreviation "WGGB" stands for "Writers Guild of Great Britain" which has rules and an arbitration service for determining such issues as who should get "Written by", "Screenplay by", and "Story by" credits.  The initials "WGA" stand for "Writers Guild of America" which has its own rules for determining such issues.

Anyone wishing to discuss this judgment may call me on 020 7404n 5252 during office hours or send me a message through my contact form.


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