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October 21, 2019
The claimant, Nicholas Martin, a professional writer of film and television scripts, was identified as the sole author of the screenplay in the credits to the film Florence Foster Jenkins, a comedy drama starring Meryl Streep and Hugh Grant, which premiered in London in April 2016.
Since April 2014 the defendant, Julia Kogan, a professional opera singer, had sought a proportion of Mr Martin’s income from the film. Mr Martin and Ms Kogan had lived together as partners during the period in which the idea for the film arose and when treatments and early drafts of the screenplay were written.
Mr Martin issued proceedings against Ms Kogan seeking a declaration that he was the sole author of the screenplay. Ms Kogan filed a counterclaim for a declaration that she was joint author of the screenplay and that Mr Martin had infringed the copyright in it. She also joined the production and financing companies for the film as Part 20 Defendants, against which she sought relief for infringement of the copyright.
At first instance, His Honour Judge Hacon concluded that Mr Martin was entitled to a declaration that he was the sole author of the screenplay and that he had not infringed the copyright. Ms Kogan appealed on seven grounds.
Giving the lead judgment, Lord Justice Floyd found that Mr Martin could not treat the case as one that had to be analysed on a draft-by-draft basis, leading to the conclusion that, because Ms Kogan only contributed to the earlier drafts, Mr Martin owned all the copyright in the final draft. It was clear from the CMC that it had been agreed that the case would proceed on the footing that Ms Kogan could succeed in her action for copyright infringement if she proved contributions to earlier drafts. In other words, the artistic or literary input was to be analysed by considering the work holistically as a single work that required the totality of the skill and labour involved in producing all the drafts to produce it. If Mr Martin had wanted to proceed on a draft-by-draft analysis he should have pleaded it, which he did not. HHJ Hacon had not relied solely on this point, but Floyd LJ said he should not have relied on it at all. HHJ Hacon had therefore unfairly allowed an unpleaded point to defeat Ms Kogan’s claim, which he was wrong to do.
Further, Floyd LJ said that HHJ Hacon had wrongly ignored Ms Kogan’s evidence contained in her witness statement, which set out a detailed scene-by-scene analysis of her contributions. HHJ Hacon had taken Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560 (Comm) and Blue v Ashley  EWHC 1928 (Comm) as an “admonition” against placing any reliance on the recollections of witnesses. This was “a serious error”, Floyd LJ said, as Gestmin did not lay down any general principle for the assessment of evidence. Rather, it emphasised the fallibility of human memory and the need to assess witness evidence alongside contemporaneous documentary and other reliable evidence. Floyd LJ also said that HHJ Hacon made errors in examining the evidence that he did rely on. HHJ Hacon’s approach to the evidence led him to fail to make findings on key issues.
Floyd LJ noted that the task for the court had been to ascertain whether Ms Kogan’s contribution was made in the course of a collaboration, and, if so, whether it crossed the relatively undemanding threshold for joint authorship set by Case C-5/08 Infopaq International A/S v Danske Dagblades Forening  ECR I-6569 and subsequent authority.
Floyd LJ found that HHJ Hacon had failed to make a finding on the issue of collaboration, but in any event, his summary of the extent of Ms Kogan’s contribution failed to take account of a number of significant matters. It was not possible to dismiss any of her contributions as not being authorial in nature, as HHJ Hacon had done.
Floyd LJ acknowledged that appellate courts should not become involved in detailed and complex re-assessments of factual findings made by a judge. However, on the basis of his findings, Floyd LJ said that the judgment could not stand, as HHJ Hacon had adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material matters and had applied incorrect legal standards to the assessment of the sufficiency of Ms Kogan’s contributions. In those circumstances, and with reluctance, Floyd LJ said he could “see no escape from the conclusion that there must be a retrial”. He therefore allowed the appeal and set aside the judge’s declarations and other orders. He ordered a new trial before a different judge in the IPEC who he said should be a full-time circuit or High Court judge. (Julia Kogan v Nicholas Martin  EWCA Civ 1645 (9 October 2019) — to read the judgment in full, click here).