Principles of joint authorship

In a recent case, the English Court of Appeal set out the legal principles to consider when deciding whether individuals are joint authors of a copyright work. In the subsequent retrial, the English Intellectual Property Enterprise Court applied these principles and considered the legal principles applicable when quantifying the shares of joint authors.*

The case concerned the screenplay of the 2016 film ‘Florence Foster Jenkins’, starring Meryl Streep and Hugh Grant. The film credits identified Mr Martin as the sole author of the screenplay (and therefore the sole owner of the copyright in that screenplay). Mr Martin and Ms Kogan were in a relationship for much of the time when the screenplay was being created, although Mr Martin wrote the final draft after their relationship ended. Ms Kogan, an opera singer, had introduced Mr Martin to the story of Florence Foster Jenkins and claimed that she had contributed to the screenplay including in relation to plot, character and dialogue. The question was whether these contributions by Ms Kogan meant that Mr Martin and Ms Kogan were joint authors (and joint owners of the copyright in) the screenplay.

This case highlights the importance of ensuring that everyone is on the same page when it comes to authorship and ownership of copyright works. This is especially true when more than one individual is involved in creating a work, when questions of joint authorship can arise.

What should organisations do?

If two or more individuals are involved in creating a work, it is important to consider whether those individuals could be joint authors. Dealing with this from the outset will allow appropriate arrangements to be put in place, such as obtaining assignments or licences from all joint authors, and will help to avoid issues later on. Organisations investing in copyright works should make appropriate inquiries and consider mitigating the risk of authorship disputes by obtaining appropriate warranties and indemnities from the purported authors.

What is a “work of joint authorship”?

A work of joint authorship is a copyright work produced by the collaboration of two or more authors where each author’s contribution is not distinct from that of the other author(s).

This can be broken down into four elements:

• collaboration
• authorship
• contribution
• non-distinctness of contribution.

Principles of joint authorship

When deciding if an individual is a joint author of a work, the following points should be considered:

Collaboration: was there a collaboration and what was its nature?

• A work of joint authorship is a work produced by the collaboration of the individuals who created it.
• The work must be created by a collaboration pursuant to a common design. It will be a collaboration where individuals undertake jointly to create a work with a common design as to its general outline, and where they share the labour of working it out.
• It is essential to identify the nature of the interaction between the relevant individuals, and the nature of each individual’s contribution, in relation to the work. If an individual suggests phrases or ideas or provides editorial corrections or critique, other than in the course of a collaboration, they will not be a joint author. Similarly, an arm’s-length researcher merely providing some technical jargon, or an individual merely acting as a sounding board, would not be a joint author.
• It is not simply a question of asking who did the writing. Authors can collaborate in different ways when creating a work. For example, individuals may be joint authors if one individual devises the plot of a novel or play and the other writes the words, or if they share the labour of working out the plot, scenes and characters, or if they share the labour of writing.

Authorship: was the individual’s contribution authorial?

• An individual will not be a joint author unless their contribution is “authorial”. In other words, they must have contributed a significant amount of the skill that was involved in the creation of the work.
• It is not correct to conclude that only the person who does the writing (or otherwise records the work) can be an author. The concept of an author is broader than that and, for a literary or dramatic work, could include any individual involved in “creating, selecting or gathering together the detailed concepts or emotions” which are then recorded in writing.
• What amounts to an authorial contribution will depend on the type of copyright work. For example, for a screenplay, contributing to the plot, storyline, dialogue, choice of characters or dramatic incidents could amount to an authorial contribution.

Contribution: is the individual’s contribution an expression of their own intellectual creation?

• To decide whether an individual’s contribution is sufficient to justify joint authorship, the test is whether they contributed elements expressing their own intellectual creation. This means they must have exercised free, creative and expressive choices in producing the relevant work, reflecting their personality and stamping the work created with their ‘personal touch’. This is less likely to be the case where the choices are more restricted. In the retrial, the Court considered Ms Kogan’s contributions as “far from mechanical or constrained” and “highly creative and imaginative”.

Non-distinctness of contribution: is the individual’s contribution distinct?

• An individual will not be a joint author if their contribution is distinct. (In that case, each author could simply rely on the copyright in their distinct part.) In the retrial, the Court considered that trying to separate the contributions of Mr Martin and Ms Kogan “would be like trying to unmix purple paint into red and blue”.

Further considerations

• There is no need to show that the authors had a subjective joint intention to create a work of joint authorship.
• If an individual makes the final call on what goes into the work:
  • this may be relevant to whether there is a collaboration
  • this does not automatically rule out joint authorship
  • when determining their respective contribution, credit should be given for the extra work involved in making those final calls.

Principles for quantifying the shares of joint authors

• Joint authors do not need to have equal shares of the copyright, and can agree a different allocation.
• In the absence of agreement between joint authors, the Court can allocate shares on a pro rata basis to reflect the relative amounts of each joint author’s respective contribution. The presumption is that joint authors have equal shares. If the circumstances justify it, the Court may decide a different allocation other than equal shares, but there may be occasions where the Court cannot reach this conclusion.
• The allocation of shares is a highly subjective decision, is a matter of qualitative and quantitative assessment and may be approached by the Court on a broad-brush basis.

* Kogan v Martin & Ors [2019] EWCA Civ 1645 ; [2021] EWHC 24 (Ch)