Facts

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 about Florence, who loved music and singing and gave concerts and performances despite being unable to sing. The film starred Meryl Streep and Hugh Grant and 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 from 2012 to 2014, 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 (the Film Companies) as Part 20 Defendants, against which she also sought relief for copyright infringement.

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.

The Court of Appeal found that HHJ Hacon had wrongly relied on an unpleaded point that only the final draft of the screenplay could be relied on, rather than the earlier drafts, to defeat the claim for joint authorship. HHJ Hacon had also wrongly ignored evidence setting out a detailed scene-by-scene analysis of Ms Kogan’s contributions. In addition, he had made errors in examining the evidence that he had relied on, leading him to fail to make findings on key issues. He had failed to make a finding on the issue of collaboration and whether Ms Kogan’s contribution crossed the relatively undemanding threshold for joint authorship set by Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] EU:C:2009:89. In addition, the Court of Appeal rejected HHJ Hacon’s identification of development of plot and character as secondary skills, the primary skill (he had said) being choice of words. The Court of Appeal explained that a screenplay is a dramatic work and distinct from a novel. The primary purpose of a dramatic work lies in it being performed, as opposed to being read, like a novel. Therefore, the arrangement of situation and plot, as well as character development, can be of the essence.

Accordingly, the Court of Appeal remitted the case back to the High Court for a re-trial.

Decision

Joint authorship

As part of her evidence, Ms Kogan submitted an Annex setting out a detailed scene-by-scene analysis of her contribution to the screenplay. This was narrowed down to the “six best” points. Mr Justice Meade found that, on examination of the chronology of events leading to the final draft and of the “six best” points, Ms Kogan had succeeded in showing that she had indeed contributed to the authorship of the screenplay.

Meade J also considered the characterisation more broadly, finding that music was central to the whole film and key to the understanding of the two main characters, Florence, and her singing teacher, Mr McMoon. Florence was a sad character to the outside observer because her ambitions were so ridiculous and her delusion so great, but she was to an extent happy within herself because she loved music and her own participation. This characterisation was highlighted by the contrast between the character of the professional soprano, Lily Pons, and Florence. Such characterisation depended on music and its performance and therefore all depended on the input of Ms Kogan to the creative process. The same was true of some of the other characters. In fact, Meade J said, Ms Kogan’s input was of great importance to all the central characters. It was not necessarily easy to reflect this kind of contribution by pointing to specific dialogue or scenes because it suffused the whole screenplay.

Meade J also found, on the facts, that Ms Kogan had had the original idea of a screenplay about Florence. She and Mr Martin had then set about the creation of a screenplay, initially by mapping out the characters, feeling, main events and key musical content, resulting in the first five draft treatments. Ms Kogan had a feeling for the musicality of the screenplay and its interaction with the characters and their development. She had an understanding of musical tuition and the feel of the world of opera and 1940s New York. She made plot and character suggestions based on this. She also made some suggestions for dialogue which were worked up with Mr Martin into important scenes.

This contribution was authorial, Meade J said, because it resided in the “creation, selection and gathering together of detailed concepts and emotions which the words have fixed in writing”. The mere idea to write a screenplay about Florence would not have been authorial on its own, he said.

It followed, therefore, that Ms Kogan’s contributions were an expression of her own intellectual creation. They were far from mechanical or constrained and were highly creative and imaginative. The fact that Mr Martin had the final decision did not mean that her contribution was not an expression of her own intellectual creation.

Contributions

Meade J found that the circumstances clearly justified an allocation different than 50:50, as requested by Ms Kogan. Indeed, he said that a 50:50 decision would be an obvious injustice given how much greater was the work of Mr Martin.

Meade J found that, from the beginning, Ms Kogan had contributed characterisation, feel and musicality, as had Mr Martin. Mr Martin alone had considered the structure of the story in terms of its being translated into a screenplay. Apart from Ms Kogan’s correcting typos, Mr Martin had actually written the treatments. Later on in the process, Ms Kogan had continued to make similar contributions, but to a much lower degree. Mr Martin was, on the other hand, working long hours on the actual screenplay. The drafts included some important dialogue to which Ms Kogan made material contributions, but much more to which she did not. In addition, Mr Martin had had to ensure that the screenplay would be practical for the making of a film in terms of length, settings, number of actors and so on. This work, and essentially all the actual writing, came from him. This was all highly creative, difficult and intricate work.

The overall amount of time spent by Ms Kogan and Mr Martin respectively was also a factor, though not a conclusive one, Meade J said. The facts indicated that Mr Martin spent a longer time on the project than Ms Kogan did.

Overall, Meade J found that Ms Kogan’s contribution was 20%.

The Film Companies

The Film Companies argued that Ms Kogan was estopped from claiming relief for copyright infringement from them because she had acquiesced to the screenplay being produced as a film. Meade J found that, on the facts, the following three requirements for an estoppel to exist were established:

i) Ms Kogan knew that the Film Companies believed they were free to commercialise the screenplay without interference from Ms Kogan;

ii) the Film Companies relied on their belief; and

iii) the Film Companies had incurred detriment as a result.

On the issue of unconscionability Meade J found that:

• it was highly relevant that Ms Kogan knew about the Film Companies’ belief that they could commercialise the screenplay, and in a loose sense at least she had fostered that belief by encouraging Mr Martin to try to get the screenplay commercialised in his name alone;
• it was also highly relevant that if Ms Kogan had stated the true position before the Film Companies became committed, they would have been able to go ahead with the film at no greater expense as they would have insisted that Ms Kogan and Mr Martin share the amount the Film Companies had agreed to pay Mr Martin;
• alternatively, but much less likely, the Film Companies would have walked away with no exposure to Ms Kogan’s claim;
• on the other hand, the Film Companies had accrued substantial benefit from the exploitation of the film, including Ms Kogan’s contribution;
• the fact that the film was released without a credit to Ms Kogan was her own fault as her claim was late, unclear and confusing and apparently inconsistent with Mr Martin’s sole authorship, which she had allowed the Film Companies to believe in;
• to the extent that the Film Companies had the benefit of an estoppel to prevent Ms Kogan obtaining financial relief from them for the past, it was relevant that she had, or might have had, an alternative remedy against Mr Martin;
• for such future payments as may be due to Mr Martin, the position was different because it would not worsen the position of the Film Companies to have to arrange payment to Ms Kogan of her share (and to pay Mr Martin correspondingly less); and
• there was no real downside to the Film Companies giving an appropriate credit on IMDb and they did not argue that there was one.

Accordingly, Meade J concluded that Ms Kogan was estopped from seeking an injunction against the Film Companies, or any restriction on the form in which they distributed the film, or any financial relief against them, so long as they paid to her 20% of anything owing by them to Mr Martin in the future (subject to argument at the form of Order hearing to follow). She was also estopped from withdrawing her consent to their commercialisation of the film. Meade J was therefore clear that the Film Companies had not infringed Ms Kogan’s copyright or moral rights.

Meade J considered that these findings put the Film Companies in essentially the position they genuinely and reasonably thought they were, and on the faith of which they had acted, subject to minor incursions for the future, including an IMDb credit for Ms Kogan and an appropriate declaration as to her authorship.

Meade J also held that Mr Martin was entitled to rely on consent by Ms Kogan down to the point when it became clear as between them that she would get no writer’s credit. Ms Kogan was therefore entitled to an inquiry as to damages or an account of profits against Mr Martin for the period after she had withdrawn her consent. Mr Martin’s acts of dealing with the screenplay thereafter (making copies in the course of improving the screenplay for shooting and the like) were real and, Meade J found, infringements.

Conclusion

Meade J concluded that:

i) Ms Kogan was a joint author;

ii) her contribution was 20%;

iii) the Film Companies’ defence of estoppel in substance succeeded, on certain very minor conditions;

iv) Ms Kogan had consented to dealings with the screenplay but had withdrawn her consent in 2015; and

v) Mr Martin had infringed her rights after Ms Kogan withdrew consent on 16 March 2015.

(Nicholas Martin v Julia Kogan [2021] EWHC 24 (Ch) — to read the judgment in full, click here).