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Kogan v Martin, 2019 WL 05103325 (2019)

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Kogan v Martin Also known as: Martin v Kogan

Positive/Neutral Judicial Consideration

Court Court of Appeal (Civil Division) Judgment Date 9 October 2019 Where Reported [2019] EWCA Civ 1645 [2019] 10 WLUK 163 [2020] E.C.D.R. 3 [2020] E.M.L.R. 4 [2020] F.S.R. 3 [2020] C.L.Y. 1181 Judgment Subject Intellectual property Other related subjects Arts and culture; Administration of justice; Civil evidence Keywords Collaboration; Copyright; Dramatic works; Films; Findings of fact; Joint authorship; Memory; Sufficiency of evidence Judge Floyd LJ; Henderson LJ; Peter Jackson LJ Counsel For the appellant: Simon Malynicz QC, Lionel Bently, Ashton Chantrielle. For the first and second respondents: Tom Weisselberg QC. For the third to fifth respondents: Jonathan Hill. Solicitor For the appellant: Keystone Law. For the first and second respondents: Lee & Thompson LLP. For the third to fifth respondents: Wiggin LLP.

Case Digest Summary In a dispute over the authorship of a screenplay, the Court of Appeal examined and gave guidance upon the proper approach to determining joint authorship, including how to analyse collaborative input, particularly where there were successive drafts of the work. It also commented on the judicial treatment of witness recollections and explained the effect of the observations about memory in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [2020] 1 C.L.C. 428, [2013] 11 WLUK 439.

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Kogan v Martin, 2019 WL 05103325 (2019)

Abstract The appellant (K) appealed against a declaration that the first respondent (M) was the sole author and copyright owner of the screenplay for the film "Florence Foster Jenkins". K was an opera singer and M a professional writer. The screenplay, which was about the life of an American socialite opera singer, was written while they were romantically involved. M produced the final draft after the relationship ended. The film credits identified M as the sole author. It was common ground that K had introduced M to Florence's story. She claimed that she was a co-writer who had worked closely with him on the drafts, contributing to the characters, the story and the dialogue so that it was a "work of joint ownership" within the meaning of the Copyright, Designs and Patents Act 1988 s.10(1). The judge accepted M's submission that each draft of the screenplay should be treated as a separate copyright work and held that there had been no collaboration in creating the final version, so that K was not a joint author. Dismissing much of her evidence on the basis that it was "vague and rambling", the judge held that her contribution had been limited to minor editing, helpful criticism and technical musical language in early drafts. He ruled that the significance of a contribution depended on the type of skill employed, distinguishing between primary skill (selection and arrangement of words in the course of setting them down) and secondary skill (inventing plot and character). He determined that the test of joint authorship based on primary skill was whether the contribution was a substantial part of the whole, but to succeed in a claim of joint authorship based on secondary skill, the contribution had to be sufficiently overwhelming to render the person who provided the primary skill nothing more than a scribe.

Held Appeal allowed. Joint authorship: general - The court enunciated 11 propositions based on examination of previous authorities: Joint authorship involved collaboration. Collaboration meant people jointly creating the work with a common design as to its general outline and sharing the labour of working it out. Derivative works did not qualify. It was never enough to ask "who did the writing?" when assessing collaboration to create a literary or artistic work. An "author" included those who contributed significantly to creating, selecting or gathering together the detailed concepts or emotions that the words fixed in writing. Contributions that were not "authorial" did not count. The question of what was enough of a contribution turned on whether the person had exercised free and expressive choices, demonstrating their own intellectual creation. The contribution of a putative joint author must not be distinct. The authors did not need to have had a subjective intention to create a work of joint authorship. The fact that one of the authors had the final say was not conclusive. Respective shares of joint authors should reflect pro rata the relative amounts of their contributions.

(see paras 30-53 of judgment). Collaboration in successive drafts - There were two approaches to analysing collaborative input: (1) treating each draft as a separate copyright work and assessing only the original skill and labour in the relevant draft; (2) treating the work holistically, looking at the totality of the skill and labour involved in producing it. Often it would not matter which was used. Here, where K had been more involved in earlier drafts than later ones, it made no sense and was unfair to restrict the case to the final draft. The agreed footing at the case management conference was that K could succeed in her action for copyright infringement if she proved her contributions into earlier drafts. Had M wished to contend for the first approach, he should have raised it much

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Kogan v Martin, 2019 WL 05103325 (2019)

earlier. The judge should not have relied on it. He had decided the case on the nature and extent of K's contribution without making a finding as to the presence of collaboration (paras 80, 82-85, 109, 112). Primary and secondary skills - The judge's distinction between the two types of skill and his implication that less weight should be given to ideas than written words had no basis and was positively unhelpful. It also failed to make an important distinction between a novel and a screenplay, the latter being more accurately described as a dramatic work because it was meant to be performed, not read. It was wrong to describe inventing plot and character as a secondary skill and to say that there was a "high bar" for such contributions. The judge had criticised K for being unable to spell out her contributions, yet it was inherent in a case of joint authorship that individual contributions would not always be separate or distinct. The test was, in fact, relatively undemanding, namely that the contribution had to be of elements that were the expression of the author's own intellectual creation (paras 57, 65-67, 69, 106). Judge's treatment of evidence - The judge read Legatt J's statements in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [2020] 1 C.L.C. 428, [2013] 11 WLUK 439 as an "admonition" against placing any reliance on the recollections of witnesses. That was a very serious error. Gestmin should not be taken as laying down a general principle for the assessment of evidence. It emphasised the fallibility of human memory, but a proper awareness of such fallibility did not relieve judges of the essential judicial function of making findings of fact based upon all the evidence, CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB), [2019] 7 WLUK 57 approved. The Gestmin observations were expressly addressed to commercial cases, and the judge had applied them selectively and inconsistently to a situation involving private individuals, Gestmin explained. K had produced a document that was a genuine attempt to give a fair picture of her contributions and the judge should not have dismissed its contents out of hand. His approach of relying only on documentary and agreed evidence had led him to fail to make findings on key issues and overlook significant matters such as K's contribution to the shaping of the characters and the plot. It was not possible to dismiss those as not being authorial in nature. It was realistic that a reconsideration of the evidence would show that K's contribution passed the quantitative threshold for joint authorship and a retrial would be ordered (paras 86-91, 93, 96-99, 101, 103, 112, 140-142, 145-146).

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