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Published 9 March 2021
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.
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.
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:
When deciding if an individual is a joint author of a work, the following points should be considered:
* Kogan v Martin & Ors  EWCA Civ 1645 ;  EWHC 24 (Ch)
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