A decision in the Intellectual Property Enterprise Court, IPEC, has applied the joint authorship principles set out by the Court of Appeal in a dispute about the authorship of the screenplay for the film Florence Foster Jenkins.

This decision has implications for any author getting input from a third party who may therefore be able to claim to have made an ‘authorial’ contribution.

The decision sets out the facts that should be considered to establish joint authorship, and that the joint authorship does not require equal contributions. The judgement addresses the boundary between mere ideas, which are not protected by copyright, and the expression of those ideas, which can be.

The film, Florence Foster Jenkins, is the story of the title character who was determined to become an opera singer despite her total lack of talent. The film starred Meryl Streep and Hugh Grant and was nominated for two Oscars and four Golden Globe awards.

The screenplay was written by Nicholas Martin. He claimed to be the sole author. His ex-life partner, Julia Kogan, claimed she had made significant contributions to the screenplay. Ms Kogan is an opera singer and music teacher. Martin and Kogan were in a romantic relationship during the writing of the screenplay. Martin accepted that Kogan had contributed to the initial development of the screenplay but claimed that he was the sole author.

The first trail decision of the IPEC found that Kogan’s contributions to the screenplay were not sufficient to qualify her as a joint author.
The decision of the Court of Appeal, however, set aside this decision and ordered a retrial, and importantly, set out 11 steps to determine joint authorship. These 11 steps are set out below. This case is the first to apply these principles.

The court found that in the collaboration Kogan’s contributions exceeded those of a mere sounding board or researcher. Her input was of “great importance to all the central characters”. Her knowledge of the opera industry allowed her to make significant contribution to the development of the screenplay.

The second IPEC trial decision was that Kogan’s ownership amounted to 20%. This was calculated on the basis that she contributed about one third of the initial development of the ‘treatment’, ie the story outline, and 10% of the remaining development of the treatment, ie the screenplay.

The Court of Appeal 11 step test for joint authorship:
• A work of joint authorship is the product of a collaboration of all the people who create it;
• A collaboration is when two or more people 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;
• A work will not qualify as a work of joint authorship if it is derivative, or where one of the authors only provides editorial corrections or critique, or when the second person only provides suggestions of phrases or ideas;
• Joint authorship may include the situation where one person creates the plot and the other writes the words;
• A joint author must contribute a significant amount of the skill which has gone into the creation of the work;
• The authorial contribution will vary according to the nature of the work, whether it is literary, dramatic or artistic;
• The level of contribution required will depend on a number of conditions including whether the author’s contribution involves the exercise of free and expressive choices and, how restrictive those choices were;
• The contribution of each joint author must not be distinct from the other contributions (as these might then be separate copyright works owned by the individual author);
• There is no requirement that the authors should have intended to create a work of joint authorship;
• The fact that one author has the final say on what is included or excluded from the final work is not conclusive;
• The respective shares of the joint authors need not be equal but can reflect the relative amount of the different contributions.