Judge Hacon’s 10 (+ 1) commandments on joint authorship under UK copyright law

Judge Richard Hacon

In the Florence Foster Jenkins decision, as discussed here, Hacon J gave a useful summary of UK copyright law on the issue of joint authorship. The summary, as set out in para.  54 of the judgment, almost reads as Hacon’s ‘10 commandments’ on joint authorship under UK copyright law:

“(1) A party will be joint owner of the copyright in a work only if he or she (or in the case of a company, its employees) collaborated in the creation of the work. The collaboration must be by way of a common design, i.e. co-operative acts by the authors, at the time the copyright work in issue was created, which led to its creation.

(2) The contribution of each author must not be distinct from that of the other author or authors.

(3) Contributions by a putative joint author (including those done by way of collaboration) which formed no part of the creation of the work are to be disregarded in the assessment of joint authorship.

(4) No distinction is to be drawn between types of contribution that did form part of the creation of the work. In particular, there is no distinction which depends on the kind of skill involved in making the contribution.

(5) The contribution, assuming it is relevant to the assessment of joint authorship, must be sufficient. This depends on whether the contribution constitutes a substantial part of the whole of the work in issue.

(6) That will be the case if the contribution would be protected by copyright in the work. Thus, if the contribution alone were copied by an unlicensed third party and such copying would result in an infringement of the copyright, the contribution constitutes a substantial part of the whole.

(7) The test of substantiality in the context of joint authorship of copyright, as in the context of infringement, involves a qualitative as well as quantitative assessment. 

Criticism and suggestions
do not amount to joint authorship

(8) Suggestions from a putative joint author as to how the main author should exercise his or her skill – for instance by way of criticism or editing of a literary work – will not lead to joint authorship where the main author has the final decision as to the form and content of the work.

(9) It is thus relevant, but not decisive, whether an author is the ultimate arbiter as to the content of the work.

(10) If joint authorship is established, the court may apportion ownership of the copyright.”

An 11th commandment can be found a little later in the decision, in relation to contradictory evidence about ‘who did what’ during the creative process. In para. 61, Hacon J advises the following:  

[11] “place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations and instead … base factual findings on inferences drawn from the documentary evidence and known or probable facts seems to me appropriate to the present case.”

The relevant case law for commandments 1 to 10 seems to be:

•         Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449
•          Levy v Rutley (1871) (1871) LR 6 CP
•          Tate v Thomas [1921] 1 Ch 503
•        Wiseman v George Weidenfeld & Nicolson Ltd [1985] FSR 525
•         Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449
•          Robin Ray v Classic FM plc [1998] FSR 622
•         Brighton v Jones [2004] EWHC 1157
•        Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818

And for the eleventh:

•  Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)
• Blue v Ashley [2017] EWHC 1928 (Comm)

Isn’t  it nice when copyright feels easy?