Claim of joint authorship fails in the Florence Foster Jenkins case

Florence Foster Jenkins - the film

Last week, the High Court settled the dispute between script writer Nicholas Martin and opera singer Julia Kogan over the authorship of the script used to produce the film Florence Foster Jenkins (full decision here). The decision gives a clear summary of the case law on joint authorship applicable in the UK. However, Hacon J’s reasoning becomes a bit  more uncertain regarding the distinction he proposes to draw between ‘primary skill’ and ‘secondary skill’ and how it may apply to a claim of joint-authorship [para 44 to 51]. The subsequent paragraphs detail with each point in turn. 

The dispute

Martin applied to the court to confirm his rights as the sole author and reject Kogan’s joint-authorship claims. Martin and Kogan lived together as partners when Martin began writing the script, which described the life of Florence Foster Jenkins, an American socialite and would-be soprano known perversely for her poor voice (hear here!). Martin produced three drafts to each of which Kogan contributed inter alia edits to the dialogue and suggestions of scenes or themes. By the time Martin produced the last version of the screenplay, the couple had separated. The film premiered in 2016, crediting Martin as  sole author of its script.

The actual Florence Foster Jenkins

Kogan’s case for joint authorship was based on the argument that the contributions she made to the first three drafts of the script had found their way into the last (and fourth) version. Hacon J rejected this contention, stating that  Kogan had failed to satisfy the condition of ‘collaboration’ and ‘sufficient contribution’ to qualify her as ‘joint author’ of the work.  Moreover, the Court stressed that Kogan’s defence was poorly served  claims that lacked in clarity and evidence [para 10-11]. 

‘Collaboration’, consent and ‘common design’

Hacon J noted that Kogan’s claim of joint authorship in the screenplay failed to meet the "collaboration" requirement, noting that Section 10(1) of the CDPA 1988 made it an express requirement for the copyright work ‘to be produced by the collaboration of two or more authors’ to be regarded as jointly authored [para 13 to 15]. Indeed, at the time Martin finalised the last iteration of the script, which served as the actual screenplay of the film, the parties were no longer living together and they had not discussed the final version, unlike  the previous drafts [para 16, 26]. This alone was enough, in Hacon J’s view, for the condition of ‘collaboration’ to fail – as far as the last version of the script was concerned [para 26].

Hogan’s counsel attempted to argue that Hogan's consent for previous drafts to be used within the final script was a form of collaboration, holding  that “consent was enough to make her a collaborator” [para 25]. Hacon J rejected this  claim, stating that

“Consent by an author to the use of his or her work product in combination with that of another is no doubt necessary for collaboration, but not sufficient. There must have been a 'common design'…” [para 25].

‘Sufficient contribution’: ‘ultimate arbiter’, ‘primary skill’ and ‘secondary skill’

Another condition that arises from the definition of joint authorship under section 10(1) is that or all collaborators  make a ‘sufficient contribution’ to the work [para 15, para 28-53]. Hacon J examined why Kogan’s contribution to the previous drafts of the script was sufficient to make her joint author of its final version. Hacon J rejected Martin’s contention that the mere fact that he ‘had the final words as to what would go in and what would not’ was enough to rule that he was sole author [para 28-29]. There  is nothing in the precedents on ‘sufficient contribution’ that warranted such an ‘absolutist’ application of the ‘ultimate arbiter test’ [para 29]. Though this fact is relevant to test of joint-authorship, it is not enough to be decisive taken on its own [para 54, point 9 and 10].

In  concluding that Kogan had not sufficiently contributed to the screenplay [para 85], even by adding to the first three drafts, Hacon J considered the following points and authorities:

•  Adding elements not themselves covered by copyright, such as scenic effects, is not a sufficient contribution (as per Tate v Thomas [1921] 1 Ch 503)
• Providing helpful criticism and expert feedback on the work is not a sufficient contribution (as per Wiseman v George Weidenfeld & Nicholson Ltd [1985] FSR 525)
• Reporting errors in the work and suggesting corrections is not a sufficient contribution ( as per Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449)
• Fixing in writing another’s work not a sufficient contribution; one must have ‘direct responsibility  for what appears on paper’ (as per Robin Ray v Classic FM plc [1998] FSR 622)
• Light touch edits to do with stage direction is not a sufficient contribution (as per Brighton v Jones [2004] EWHC 1157)
• To be ‘sufficient’, the contribution must be directed towards the originality of the work, understood as ‘skill and labour’ in the conception of the work and not just its fixation (as per Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818). 

the use of paws...a primary skill?

Kogan’s counsel argued that the test for joint authorship should be assessed in light of the test  for ‘intellectual creation’, following the jurisprudence of the ECJ regarding the Infopaq decision.  According to the defendant, ‘the test for whether a work is protected by copyright is now governed by EU law’ [not for much longer in the UK!] [para 38]. The court agreed, but concluded that there was no material difference between the UK test for ‘skills and labour’ and the EU doctrine of ‘intellectual creation’ [para 43]. Hacon J writes:

“Turning to contributions which did form part of the creation of the work, it could be inferred from earlier cases that the significance of the contribution depends on the type of skill employed in making that contribution. Here I use 'skill' as a shorthand term for the intellectual creativity of an author required for copyright protection within the meaning discussed in Infopaq.”

Finally, Hacon J goes on to explain how a useful distinction can be drawn between ‘primary skill’ and ‘secondary skill’ employed to create a work [para 44 to 51]. In the context of literary works, Hacon J explains that  primary skills would relate to “the selection and arrangement of words in the course of setting them down”. By contrast, secondary skills would apply to “inventing the plot and character”. With regards to artistic works, Hacon J associates the notion of ‘primary skill’ with "the use of a pencil, brush, computer or other means to create an image". On the other hand, ‘secondary skills’ for this category of works would involve “the composition and selection of colour”. 

Hacon J stresses that the distinction between primary and secondary skills does not imply that one is more important than the other to the creative process, but that the specific test of ‘sufficient contribution’ in relation to joint authorship under copyright law would be more easily met in cases of primary skills. He takes the view that a larger amount of secondary skill must be employed to receive joint-authorship for it, in comparison to primary skill [para 48-50].

This Kat finds the distinction interesting in itself, and as such, worth exploring further. What is questionable  are the types of creative choices Hacon J has classified as either ‘primary’ or ‘secondary’. For example, some would take the view that in many cases  the choice of a painting’s colours or composition is as defining for its originality as ‘the use of a brush’. If so, perhaps all such choices could be seen as ‘primary’. In fact, most nineteenth century painters in Europe dedicated their work to showcasing the importance of light and colour to a painting over brush skills and methodical composition. 

For this reason, this Kat would counsel against formally associating specific creative choices to either type of ‘skill’ through judicial precedents, should the notions of ‘primary’ and ‘secondary’ skills catch momentum in UK case law. However, this more flexible approach, while preventing a rigid taxonomy of creative skills from settling in the jurisprudence on joint authorship, might lead to over-uncertainty and  unpredictability.

The use (any?) brush...a primary skill?

Indeed,  perhaps the primary/secondary skill distinction does not achieve anything that would not be obtained by applying the more general idea-expression dichotomy doctrine.  As such, what Hacon J describes as ‘secondary skills’ would be akin to ‘ideas’ (unprotected by copyright, therefore insufficient contributions) and what he regards to be ‘primary skills’ would be a form of expression (protected by copyright).  

This Kat wonders how readers come down on the issue of primary and secondary skills.

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